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 symptoms were not related to his original compensable injury of March 13, 2006.

A hearing was held on May 28, 2015 to consider the matter.

Issue

 

Whether or not the worker's current right shoulder/arm and neck problems are related to the March 13, 2006 compensable injury.

Decision

 

That the worker's current right shoulder/arm and neck problems are not related to the March 13, 2006 compensable injury.

Decision: Unanimous

Background

On March 13, 2006, the worker was moving a large roll of tickets weighing up to 1,000 pounds when he injured his right shoulder and neck. Following the accident, the worker was treated by a chiropractor for cervical, thoracic and right-sided scapula and shoulder pain. On March 30, 2006, the treating physician diagnosed the worker with a cervical spine strain and a referral was made to a physiotherapist. On March 31, 2006, the worker was diagnosed with C6 right nerve root impingement and a home-based program was provided by the treating physiotherapist.

On August 2, 2006, an MRI taken of the cervical spine showed a shallow broad-based disc protrusion at C5-6 as well as degenerative changes at C6-7.

The next medical reports on file are dated December 2006 and January, March and May 2007 related to the worker's right shoulder/arm and cervical spine complaints.

In December 2014, the worker asked his WCB case manager to consider paying for the costs associated with physiotherapy treatment. The worker stated:

• it took years for him to get over his initial injury and he had been good for a couple years.

• there were no new accidents at work or at home.

• there were no changes to his job duties.

• the pain in his shoulders started to return about six months ago. The pain came back before but he did not seek treatment.

• he started to feel numbness down his arms and fingers and experienced extreme shoulder pain.

• three months ago his doctor recommended therapy. He attended laser therapy for the last couple of months through his insurance provider.

Medical information was obtained from a physiotherapist dated December 11, 2014. It was reported that the worker was seen on October 21, 2014 for right neck and upper scapular area pain and right arm and hand paraesthesia beginning four to six weeks prior. The worker was diagnosed with right C7 (C6) nerve root encroachment and osteoarthritic changes which were felt to be a contributing factor.

On December 16, 2014, a physician reported that he saw the worker on September 9, 2014 for right shoulder and neck pain. The provisional diagnosis was queried a nerve root compression between C4 to C6 on the right side. Regarding prognosis, the physician reported that this was neurogenic-type pain which can be aggravated over time with posture, lifting or injury to the neck. He noted that physiotherapy was the primary type of treatment for the condition.

In a decision dated December 30, 2014, the worker was advised that the WCB was unable to relate his current difficulties to the original workplace injury of March 13, 2006. The case manager noted that the worker sustained a cervical spine injury on March 13, 2006 and that he attended physiotherapy and then returned to his full regular duties. A physiotherapy report dated May 23, 2007 indicated that the worker was discharged from treatment due to non-attendance and during a phone conversation on April 11, 2007, the worker told the WCB that he no longer required further physiotherapy.

The case manager said it was difficult to relate the worker's current symptoms as reported by the treating physician on September 9, 2014 to the March 2006 workplace injury and that no further responsibility for treatment and/or time loss would be covered under the claim. On January 7, 2015, the worker appealed the case manager's decision to Review Office.

On March 3, 2015, Review Office determined that the worker's current right shoulder/arm/neck complaints were not related to his compensable injury. Review Office stated in its decision that it was unable to find that the worker's job duties were the cause of his current symptoms and that no new injury had been reported. The worker chose not to seek medical attention from 2007 until 2014 which suggested that the compensable injury had resolved and was not an ongoing issue. Review Office noted that because a worker suffers similar type symptoms at a later date does not make it necessarily related to his prior workplace injury. On March 23, 2015, the worker appealed Review Office's decision to the Appeal Commission and a hearing was held on May 28, 2015.

Following the hearing, the appeal panel met to discuss the case and requested additional information from the worker's treating neurologist. The requested information was later received and was forwarded to the worker for comment. On February 2, 2016, the panel met further to discuss the case and rendered their decision.

Reasons

Applicable Legislation and Policy

The Appeal Commission and its panels are bound by The Workers Compensation Act (the “Act”), its regulations and the 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(2) of the Act provides that the WCB will pay wage loss benefits until such time as the worker’s loss of earning capacity resulting from the accident ends. Section 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 represented himself in this appeal. The position that he advanced was that the pain that he had recently experienced in his right shoulder/arm and neck was attributable to the accident that he suffered on March 13, 2006.

The worker testified that the pain that he suffered in the 2006 accident had basically been alleviated by the end of 2007. From 2007 to 2009, the pain would at times return, but it was less severe than it had been in 2007. He advised that the numbness he had experienced following the injury had somewhat but not totally resolved. He also advised the panel that he had worked through his pain and that he had never missed a day of work because of the accident.

The worker advised that the issues with his arm and shoulder didn’t require any further treatment at the present time. Rather, he didn’t know what might happen in the future, and he wanted to bring the issue forward so that he might be able to access further WCB treatment should such prove to be necessary.

The worker testified that in the spring of 2014, the pain that he was from time to time experiencing in his shoulder had become so severe that he sought further treatment. He was also experiencing numbness from his shoulder into his fingertips, with the numbness being more in the middle, i.e. his forearm. He stated that it affected his sleep and “everything else.” The worker testified that the pain he was experiencing in 2013-14 was exactly what he had experienced following the 2006 injury. It was in the same location and all of the symptoms were identical.

The worker stated that he "did not know what to do." He began by undergoing massage therapy at his own cost. He believed that he commenced massage therapy in April of 2014. He advised that he visited his family doctor annually, but he hadn’t raised any such issue with him until he saw him in the fall of 2014. His physician referred him to a physiotherapist who then rendered a number of laser therapy treatments. The worker testified that the pain disappeared after such treatments and that it has not returned.

When questioned by the panel, the worker stated that it was not until he saw the physiotherapist in 2014 that he had been advised that his then current pain might be attributable to degenerative disc disease.

The worker stated that he was again been seen by his family physician in April of 2015. His physician referred him to a neurologist who saw him on April 28, 2015. The neurologist ordered an MRI that was subsequently conducted on November 17, 2015. The worker advised that he understood this MRI was intended to determine if his condition had deteriorated over the years.

In answer to a question from the panel as to whether the onset of pain could be attributable to work activities or some other work incident, the worker said that such would not have been the case. He supervises some 80 employees, and the majority of his work day is spent in his office. He also testified that the pain had not been triggered by an independent event. He did however state that his posture is poor in that his shoulders roll in, and that he has to mentally remind himself to sit properly.

Employer’s Position

The employer did not take a position on this appeal.

Analysis

The issue before the panel is whether the worker’s right shoulder/arm and neck problems that he experienced in 2013-2014 are related to the March 13, 2006 compensable injury.

In order for the appeal to succeed, the panel must find, on a balance of probabilities, that the worker’s accident of March 13, 2006 caused or contributed to the worker’s 2013-2014 right shoulder/arm and neck problems. The panel was unable to make this finding for the reasons that follow.

The early medical evidence, and in particular, the August 2, 2006 MRI suggests that the worker had pre-existing changes in his neck, particularly at the C6-C7 level, which were aggravated by his 2006 workplace injury. The MRI Report stated the findings as follows:

At the C5-6 level, there is a shallow broad-based disc protusion. There is mild effacement of the CSF collar but no flattening or signal change within the cord is noted. The foramina are patent.

At the C6-7 level, there is mild right uncinated process osteophytes. This causes minimal foraminal narrowing on the right.

The indication by his treating practitioners was that this was considered to be temporary in nature.

In September of 2014, the worker’s physician referred him to physiotherapy for his recent complaint of right shoulder and neck discomfort. In a letter to the WCB dated December 16, 2014, the physician stated that the treatment was highly successful. In terms of prognosis, he stated that “this neurogenic type of pain can get aggravated over time with the same posture or lifting or injury to the neck. This can recur in the future. Treatment with physiotherapy is the primary type of treatment for this condition.”

The worker’s family physician also referred him to a neurologist, and he saw that neurologist on April 28, 2015. The neurologist requisitioned an MRI of the worker’s cervical spine, with the worker undergoing that procedure on November 17, 2015. The results were compared against the August 2, 2006 MRI of the worker’s cervical spine.

The November 2015 MRI Report noted that:

C5-C6 Mild endplate spurring and degenerative changes in the Luschka joints bilaterally causing moderate right and mild to moderate left foraminal stenosis. No central canal stenosis.

C6-C7: right foraminal disc protrusion with small osteophytes in the right Luschka joints causing severe right foraminal stenosis with suspected irritation of the right C7 nerve root. Degenerative changes in the left Luschka joint causing mild to moderate foraminal stenosis. No central canal stenosis. These degenerative changes have progressed since the previous examination.

The Overall Impression as expressed in the November 2015 MRI Report was stated to be:

No central canal stenosis is identified. Multilevel degenerative changes as described [in the Report] with varying degrees of foraminal stenosis. There is a right foraminal disc protrusion with severe right foraminal stenosis at C6-C7, and suspected irritation of the right C7 nerve root.

The panel notes that the normal course of a degenerative condition is the waxing and waning of symptoms over time along with a gradual worsening as time progresses. In this regard, the panel has concluded that the appearance now of degenerative changes throughout the cervical spine, including findings of foraminal stenosis, is consistent with the re-appearance of the worker’s neurological symptoms. In particular, the panel notes that the most significant finding is a severe right foraminal stenosis at C6-7 and irritation of that nerve. The panel finds that this is a different disc level than the C5-C6 findings in 2006/07.

In the panel’s view, the spontaneous onset of a significant exacerbation in 2013-2014 (which was not related to work activities or specific acute events) is again suggestive of the typical course of a degenerative condition.

In light of all of the foregoing, the panel concludes that the evidence does not establish, on a balance of probabilities, that the worker’s 2013-2014 symptoms were related to the March 13, 2006 compensable injury.

The worker’s appeal is therefore dismissed.

Panel Members

D. Kells, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

D. Kells - Presiding Officer

Signed at Winnipeg this 17th day of March, 2016