The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB")that she had recovered from the effects of her compensable injury by June 28,2012.  A hearing was held onDecember 8, 2015 to consider the worker's appeal.

Issue

Whether or not the worker is entitled tobenefits after June 28, 2012.

Decision

That the worker is not entitled to benefits after June 28,2012.

Decision: Unanimous

Background

The worker was rear-ended in a motor vehicle accident during the course of her employment on December 19, 2011 and reported an injury to her neck. Initial medical reports showed that the worker presented to a chiropractor on December 21, 2011 with complaints of muscle weakness, instability and edematous swelling in the cervical spine. In a follow-up report dated January 17, 2012, the treating chiropractor reported neck and upper back pain with stiffness and headaches.

On February 2, 2012, the worker described the accident that occurred on December 19. She said she was struck from behind while stationary at a yield. The vehicle behind her was not traveling quickly. She was turning her head sideways when hit. She had constant pressure at the base of her skull, daily burning at the back of her head, burning down her back and in front on her right hand side near the shoulder blade. The worker indicated that range of motion in her neck was limited looking downwards but was otherwise good in all other directions. She had numbness in both hands prior to the motor vehicle accident. The worker reported periodic dizziness/headaches and nausea.

The claim for compensation was accepted based on the diagnosis of cervical/thoracic/lumbar sprain strain.

On February 3, 2012, a WCB sport medicine advisor outlined temporary restrictions for the worker, to include limitation of tasks requiring sustained neck extension/flexion or repetitive neck twisting.

On February 19, 2012, the worker underwent an MRI of the cervical spine. The MRI results read as follows:

...At the C5-6 interspace level there is a shallow posterior-central disc protrusion. Within the T2 vertebral body there is a discreet, rounded area of signal alteration, the appearance is quite compatible with a incidental hemangioma.

No other bone, soft tissue disc or articular abnormality is observed. In particular, there is no prevertebral soft tissue swelling and no finding of a bone, articular or ligamentous injury.

On February 21, 2012, the worker attended a physiotherapist who reported a diagnosis of whiplash associated disorder. The physiotherapist also noted that the worker's symptoms seemed "out of proportion" for the objective findings.

A graduated return to work program was arranged for the worker to commence February 27, 2012 at 4 hours each day.

In a progress report dated April 12, 2012, the worker's family physician reported that the worker's neck pain was going down her shoulder and upper back. She also reported that the worker was working 6-hour shifts and could barely make it.

On April 29, 2012, the worker underwent an MRI of the thoracic spine which was reported as being normal.

On May 11, 2012, the WCB sport medicine advisor reviewed the file and stated that further restrictions in relation to the workplace injury were no longer advised, based on the available medical information and in view of the following factors:

• The time elapsed since the date of injury (nearly 5 months),
• The nature of the injury - consistent with neck/back strain of which the anticipation was for functional recovery within 2-6 weeks,
• The current presentation which was indicative of nonspecific neck/back pain with normal findings on the cervical and thoracic spine MRI examinations, and
• The recent April 9, 2012 emergency report noting a presentation consistent with...disease.

Based on the WCB sport medicine advisor's opinion, the worker was advised on May 11, 2012 that she was not entitled to further wage loss or medical aid benefits, as the WCB felt she had recovered from the effects of her December 19, 2011 workplace injury.

On May 18, 2012, the worker was advised by the WCB that a report from a treating physician dated May 11, 2012 had been reviewed by the WCB sport medicine advisor who stated:

May 11/12 worsening in pain is not consistent with the natural history of a cervical strain. The demonstrated marked impairment of neck mobility in lateral flexion does not correlate with the February 19/12 c-spine MRI report.

Based on the sport medicine advisor's comments, the worker was advised that she was not entitled to further wage loss or medical aid benefits in relation to the December 19, 2011 workplace injury.

On July 19, 2012, the worker appealed the May 18, 2012 decision. The worker indicated that the doctor and physiotherapy reports on file showed that she had been experiencing back pain since the beginning of her claim. She said she lost her job because of the WCB's decision and she was unable to work at this time. The worker noted she was seeing a pain management specialist for treatment.

By letter dated July 26, 2012, Review Office advised the worker her case was being referred back to Rehabilitation and Compensation Services to complete a further investigation and review of her claim.

A WCB case manager called the worker on August 1, 2012. The worker indicated that prior to her original compensable accident, she experienced general stiffness and soreness but nothing major and she never missed time from work. Right after the accident, her face went numb but the numbness went away. Pain from her neck into her back got worse. She said the pain had never resolved and she was never symptom-free when her compensation claim ended.

In a report to the WCB dated August 14, 2012, the treating pain management specialist reported the worker was initially seen on June 25, 2012 for upper back and neck pain, and she underwent myofascial trigger point injections on a number of occasions between June 25 and August 14, 2012. During each needling session, the worker noted significant symptomatic relief. The specialist recommended the worker continue with her home exercise program and oral pharmacological agents and indicated she would be attending a chiropractor for treatments.

On August 20, 2012, the WCB sport medicine advisor stated:

...The current condition, now 8 months since the date of injury appears to be chronic nonspecific pain for which local injections are being administered.

The initial injuries were consistent with strains of the neck and back, for which the claim was accepted.

February 9/12 and April 29/12 cervical and thoracic (respectively) MRI reporting does not demonstrate a structural abnormality about the neck/upper back caused by the workplace injury to signify a pathological process beyond a strain.

The current reported pain and limited active neck motion is not accounted for on the basis of the natural history of a strain.

A requirement for restrictions does not appear to objectively relate to a strain injury 8 months ago.

Based on the WCB sport medicine advisor's comments, the worker was advised on August 20, 2012 that it had been determined that she had recovered from the effects of her workplace injury and was not entitled to further wage loss or medical aid benefits.

On November 30, 2012, the treating pain management specialist stated, in part:

...The mechanism of injury, (the worker's) symptomatic complaints, the objective findings on the February 19, 2012 MRI study of the cervical spine, and my clinical findings are all consistent with a diagnosis of whiplash injury. Specifically, (the worker) suffered with a WAD II type whiplash injury.

With respect to the WCB medical advisor's specific statements quoted in your letter of August 20, 2012, I disagree with the assertion that (the worker's) current condition "appears to be chronic nonspecific pain". (The worker's) pain symptoms began as a direct consequence of the motor vehicle accident with her pain symptoms localized to the posterior neck and upper back regions consistent with a WAD II type whiplash injury.

I also disagree with the assertion that "the initial injuries were consistent with strains of the neck and back". In fact, (the worker's) initial injuries were consistent with a WAD II whiplash injury.

I disagree with the medical advisor's assertion that the "MRI reporting does not demonstrate a structural abnormality about the neck/upper back caused by the workplace injury to signify a pathological process beyond a strain". In fact, the cervical spine MRI report indicates findings of "a shallow posterior-central disc protrusion" at the C5-6 level that is consistent with a WAD II whiplash injury. This is one of the most commonly affected cervical spine levels injured during a WAD II injury.

It is my opinion that (the worker's) "reported pain and limited active neck motion" is consistent with a WAD II injury.

It is my opinion at this time that there is no validity in WCB's alternative diagnoses of a "chronic nonspecific pain" or "strain injury" in this case to justify your conclusion that (the worker) has recovered from the effects of her workplace injury and is therefore not entitled to further wage loss or medical aid benefits.

A Chiropractor First Report dated December 6, 2012 diagnosed the worker with chronic thoracic sprain/strain, right shoulder impingement syndrome, related to "postural stress."

On December 18, 2012, a WCB medical advisor reviewed the file and provided comments with respect to the letters from the pain management specialist and the treating chiropractor. The medical advisor stated, in part:

• While (the pain management specialist) appears to make a distinction between the "WCB's alternative diagnoses of chronic non specific pain or strain injury" and his diagnosis of WAD II, they are essentially different names or labels for the same constellation of patient reported symptoms and findings.
• When the symptoms of such a condition persist beyond the period when they would typically be expected to resolve, and no likely structural abnormality to account for the persistence is identified, a term of non specific pain is accurate and appropriate, as it does not propose speculative causes which are neither proven nor likely.
• While (the pain management specialist) asserts that the conclusion that (the worker) has recovered from effects of her injury is incorrect, the points raised in (the WCB sport medicine advisor's) May 11 2012 memo are valid, as is the conclusion that no further workplace restrictions are required in relation to effects of the (compensable injury).

Based on the WCB medical advisor's comments from December 18, 2012, the worker was advised on December 20, 2012 that the decision to end benefits on May 11, 2012 remained unchanged.

On March 25, 2013, a worker advisor wrote to the WCB case manager requesting reconsideration of the WCB decisions dated May 11 and December 20, 2012. The worker advisor submitted that based on the mechanism of injury with the head being turned, functional recovery is not expected within two to six weeks. Medical information supported that with this mechanism of injury, the symptoms can become chronic. Based on current objective medical findings, it was submitted the worker had not recovered from the effects of her workplace accident. Enclosed with the submission was a letter from an occupational health physician dated March 20, 2013. The worker advisor indicated the occupational health physician's examination provided medical evidence of an ongoing injury to specific muscles and ligaments as a result of the December 2011 workplace accident.

In a memo to file dated April 15, 2013, the WCB medical advisor stated:

The recently submitted material from the worker advisor does not contain useful new information that would lead me to change my opinion as previously expressed in memo of Dec 18 12.

(The occupational health physician) has reported the presence of "segmental sensitization" and "myofascial dysfunction". These are descriptive labels of reported symptoms and have no objective basis. The reported exam findings have no correlation with demonstrable pathology or structural abnormalities. Further, the diagnostic labels are of doubtful validity based on known lack of interrater reliability associated with their use.

The simple presence of reported soreness with palpation does not make a diagnosis, nor is it necessarily an indication of a significant illness or injury related condition requiring treatment or restriction from normal activity.

By letter dated April 15, 2013, the worker was advised that based on the WCB medical advisor's comments, the decision to end benefits on May 11, 2012 remained unchanged. On April 25, 2013, the worker advisor appealed the decision to Review Office.

On June 21, 2013, Review Office determined there was entitlement to benefits beyond May 11, 2012. Review Office stated the claim was accepted based on a strain/sprain of the worker's neck and back. It accepted that the shallow posterior central disc protrusion at C5-6 found on the MRI was a pre-existing condition that was not aggravated or enhanced by the accident.

Review Office concluded the worker was entitled to benefits beyond May 11, 2012 based on the results of an examination that took place on May 11, 2012 (as recorded in the May 11 report from her treating physician). Review Office indicated the findings at that examination demonstrated a causal relationship to the compensable injury, and referred the file back to Compensation Services for follow-up.

On July 25, 2013, the worker was seen by a WCB orthopedic consultant at a call-in examination. The consultant outlined the following clinical impression of the worker's medical status:

• The current symptoms are difficult to explain by any definitive pathology on the basis of the standard orthopedic examination...The symptoms are best described as non-specific neck, thoracic, and buttock pain.
• Imaging studies…do not explain the current symptoms.
• In the absence of demonstrable pathology, it is not possible to recommend treatments that might reasonably be expected to lead to a sustained improvement in function.
• In the absence of demonstrable pathology, a relationship to the workplace accident of December 19, 2011, cannot be demonstrated by objective medical evidence.
• It is not possible to define physical restrictions related to the workplace injury.

By letter dated August 6, 2013, the WCB case manager advised the worker that based on the July 25, 2013 call-in examination results, it was determined she had recovered from the effects of the December 19, 2011 workplace injury and was no longer entitled to WCB medical aid and/or wage loss benefits.

On September 30, 2013, an orthopedic specialist reported the worker had some cervical disc degeneration and might have some low back strain. He noted there was also "a very huge psychogenic element." He stated conservative measures were the treatment of choice, and added:

It should be noted that the patient has been examined by an orthopedic consultant at the Workers Compensation Board. His findings are much the same as mine. His remark is that current symptoms are difficult to explain by any definite pathology on the basis of the standard orthopedic examinations. He felt it was not possible to define the physical restrictions related to the workplace injury.

On July 24, 2014, the WCB case manager again advised the worker that in consideration of the previous decision letters and based on the July 25, 2013 call-in examination findings, no WCB benefits were payable beyond June 28, 2012. On July 28, 2014, the worker appealed the decision to Review Office.

In a decision dated October 24, 2014, Review Office determined there was no entitlement to further benefits as it did not find the evidence to support that the worker had ongoing difficulties related to the compensable injury. Review Office's decision was based on its review of the file information which included the WCB medical advisors' opinions on August 20, 2012 and July 25, 2013. It also considered the January 2013 opinion of the occupational medicine physician (as reported in his letter of March 20, 2013) and the September 30, 2013 opinion of the treating orthopedic specialist. On August 19, 2015, the worker appealed Review Office's decision to the Appeal Commission and a 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.

Subsection 4(1) of the Act 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.

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."

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) provides that the WCB will pay wage loss benefits until such time as the worker's loss of earning capacity ends, as determined by the WCB, or the worker attains the age of 65 years.

Worker's Position

The worker was self-represented. She explained her reasons for appealing Review Office's decision.

The worker stated that she has not yet recovered from her accident. Her upper back and neck are in constant pain, and her back goes into spasms regularly. She was cut off benefits when she had not finished her physiotherapy and it was obvious that she had not recovered from her injury. The worker submitted that her quality of life is nowhere near what it used to be. She submitted that if she had been kept on benefits and continued with medical care and treatment, she might not be suffering with chronic pain now.

Employer's Position

The employer did not participate in the appeal.

Analysis

The issue before the panel is whether the worker is entitled to benefits after June 28, 2012. For the worker's appeal to be successful, the panel must find that the worker sustained a loss of earning capacity and/or required medical aid beyond June 28, 2012 as a result of her workplace injury. The panel is unable to make that finding.

The worker responded to questions from the panel at the hearing. She described the medical treatment she has received over the past couple of years, as well as her current condition and activities. She also described the various types of pain she currently experiences, and diagrammed where they were located. She said she was unsure if her condition was better or worse now than when she was finishing her physiotherapy back in 2012, but she thought it was a little worse. The worker advised that she has not been working for the past few years.

The worker stated she was seeing a chiropractor between March and December 2014, and started seeing him again in November 2015. She said an X-ray was done when she first started seeing her current chiropractor. A copy of an X-ray report dated March 5, 2014 was produced by the worker at the hearing, and filed as an exhibit.

The panel notes the worker has received quite a few treatments since the time of her accident, including chiropractic and pain management treatments and physiotherapy, but her condition has not improved according to the worker's evidence.

At the July 25, 2013 call-in examination, the WCB orthopedic consultant found that the worker's current symptoms were difficult to explain by any definite pathology, that they were best described as "non-specific neck, thoracic, and buttock pain", and that a relationship could not be demonstrated between the worker's current symptoms and her workplace accident. The panel accepts the findings of the WCB orthopedic consultant. The panel notes that these findings are also supported by the findings of another orthopedic specialist who examined the worker on September 30, 2013 and December 23, 2013, and who specifically observed that the WCB orthopedic consultant's findings were much the same as his.

The panel recognizes that different diagnoses had previously been proposed by the occupational health physician and the treating pain management specialist, in March 2013 and November 2012, respectively. The panel notes that treatments based on those diagnoses were not successful in improving the worker's condition. Although the treating pain management specialist referred in an earlier report (August 14, 2012) to the worker having experienced "significant symptomatic relief" from the injections she received, the evidence indicates that the treatment did not provide any lasting relief. In particular, the notes from the WCB call-in examination on July 25, 2013 record that the worker described several of these injections as giving her relief for a few days, but stated that the benefit never lasted more than 3 days. Given that the treatments did not result in an improvement in the worker's condition, the panel is of the view that these proposed diagnoses were ultimately not supported medically, and are therefore not causally related to the worker's compensable injury.

With respect to the X-ray report of March 25, 2014, the panel notes the findings in that report are different from the findings on the original MRI of the worker's cervical spine in February 19, 2012. The findings as set out in that report are:

1. Degenerative disc disease at C4-5 and C5-6.

2. Osseous fragment adjacent to the C7 spinous process, either an ununited displaced secondary growth center or old ununited spinous process fracture.

3. Left cervicothoracic convexity, apex at T2, with a loss of the cervical lordosis. These changes may be associated with myospasm…

At the hearing, the worker stated the current treating chiropractor has talked to her to a limited extent about the X-ray, and said something about curvature of the spine and spondylosis or degenerative disc disease. She indicated that the chiropractor has done adjustments, and that the adjustments he has been doing are different from what the previous chiropractors did. The panel notes that the symptoms and area that the current treating chiropractor would appear to be targeting in his treatment of the worker, as identified in the March 5, 2014 X-ray report and as described by the worker at the hearing, are not the same as were identified in the original MRI.

In light of the foregoing, the panel is of the view that the current findings, as noted on the recent X-ray report, were not caused, aggravated or enhanced by the worker's accident and compensable injury.

The panel acknowledges and accepts that the worker has significant ongoing pain issues beyond June 28, 2012. However, based on our analysis, the panel is unable to relate those issues to her compensable injury. The panel finds, on a balance of probabilities, that the worker's pain and ongoing difficulties are not related to her December 19, 2011 motor vehicle accident and compensable injury.

Accordingly, the panel finds that the worker is not entitled to benefits after June 28, 2012.

The worker's appeal is dismissed.

Panel Members

L. Harrison, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

L. Harrison - Presiding Officer

Signed at Winnipeg this 4th day of February, 2016