Decision #55/16 - Type: Workers Compensation

Preamble

The worker is appealing the decisions made by the Workers Compensation Board ("WCB") with respect to his claim for injuries sustained on November 25, 2008. A hearing was held on February 25, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after October 4, 2010 in relation to his cervical and low back difficulties; and


Whether or not the worker is entitled to wage loss benefits after July 11, 2011.

Decision

That the worker is not entitled to benefits after October 4, 2010 in relation to his cervical and low back difficulties; and


That the worker is not entitled to wage loss benefits after July 11, 2011.

Decision: Unanimous

Background

The worker filed a claim with the WCB for injury to the right side of his hip, neck and back that occurred on November 25, 2008 during the course of his employment as a truck driver. The worker reported that he was unhooking the truck from the low bed and he lost his footing on a slippery area and fell ten to twelve feet to the ground.


Initial medical reports on file showed that the worker was diagnosed with a right back sprain, strain/sprain to the neck area and a possible right rotator cuff tear. Diagnostic tests results also revealed the following:


  • CT scan of the lumbar spine dated December 16, 2008 showed an L5-S1 disc protrusion with possible mild compression irritation of the right S1 nerve root.

  • MRI of the lumbar spine dated January 16, 2009 showed mild to moderate foraminal stenosis bilaterally at L4-5 with right paracentral disc protrusion and contact of the right L5 nerve root. Mild to moderate foraminal stenosis was also seen on the right at L5-S1.

  • CT scan of the neck, thorax and abdomen dated February 2, 2009 revealed soft tissue density in the anterior mediastinum measuring approximately 2x3 cm that was unchanged in appearance when compared to a prior study. The CT was done as a follow up for a previously treated disease.

  • MRI of the cervical spine dated August 11, 2009 showed degenerative changes particularly in the cervical spine with evidence of probable previous radiation exposure and related changes in the upper thoracic and cervical region with no evidence of a metastatic disease.

  • MRI dated January 28, 2010 reported a Grade II AC separation that was likely remote and with no abnormalities of the rotator cuff. March 8, 2010 right shoulder MRI reported no rotator cuff tear.


On August 10, 2010, the worker was examined by a WCB medical advisor to clarify the basis of his ongoing right neck, shoulder and low back pain. The medical advisor stated in part that the examination did not produce subjective findings of a radiculopathy in the upper or lower extremities. The MRI of the cervical spine did not identify a likely structure related to the workplace injury to explain the persistent neck pain. The attending physicians were unable to identify a likely structural cause of this region of pain or for the complete lack of recovery since the injury. This examination did not identify tissue atrophy in the affected regions and in fact found right-sided tissues to be generally larger than the left which was the opposite of what would be expected based on the degree of pain and lack of right arm use that the worker described. Based on these findings, the medical advisor opined that the current diagnosis was non-specific posterior cervical/shoulder pain. Current function was likely within the normal limits and any limitations present were likely due to pain.


Regarding the low back region, the medical advisor commented that his examination found non-specific findings in the lower back and upper buttocks but with no radicular signs. The validity of the lower back/extremity findings were clouded by the presence of 4/5 Waddell signs. The medical advisor indicated that the current diagnosis was non-specific pain of the lower back and upper buttocks.


The medical advisor stated the degenerative changes and radiation changes reported on the MRI of the cervical spine and the degenerative changes and likely old injury to the right AC joint reported on the right shoulder MRI were pre-existing conditions that would likely contribute to symptoms in the neck and shoulder regions as well as provide a likely obstacle to recovery. The worker's generally deconditioned physical state and elevated body mass index were systemic pre-existing conditions that would also likely provide an obstacle to recovery.


By letter dated September 27, 2010, the worker was advised that based on a complete review of his claim which included the call-in examination findings, the WCB was of the view that he had recovered from the effects of his workplace injury and that his current symptoms could not be accounted for in relation to his compensable injury but were likely due to the pre-existing condition(s). Therefore, wage loss benefits would be paid to October 4, 2010 inclusive and final.


In a letter to the WCB dated November 1, 2010, the treating physician stated that the worker was still experiencing significant pain and that there was no evidence that his pain was pre-existing prior to his fall. By letter dated December 3, 2010, the worker was advised that the physician's report did not provide the WCB with any new medical information that had not already been considered.


On April 28, 2011, the Worker Advisor Office asked the WCB to reconsider the decision dated September 27, 2010 based on the position that the worker had not recovered from the effects of his November 25, 2008 compensable injury and that he continued to suffer from ongoing back, neck and right shoulder symptoms. Included with the submission were the following reports:


  • November 16, 2010 and February 16, 2011 consultations report from an orthopedic surgeon

  • April 11, 2011 report by the attending physician

  • Medical literature related to the etiology of Superior Labral Lesions


In response to the April 28, 2011 submission, the WCB case manager referred the claim file to the WCB healthcare branch to obtain medical advice as to whether a relationship existed between the worker's ongoing right shoulder condition, the February 3, 2011 surgery, and the workplace injury of November 25, 2008. In a response dated June 28, 2011, the WCB medical advisor stated:


…there is no evidence in the file indicating right shoulder symptoms for many months following this initial visit, including further visits to the same chiropractor. Furthermore, the worker was examined by a number of doctors and specialists, none of whom identified any significant concerns regarding right shoulder structures…An AC joint separation and/or SLAP injury occurring as result of a fall would likely present with significant symptoms/ clinical findings and would not likely be missed by a number of examining physicians and specialists. Admittedly, it is possible that these injuries occurred at the time of the accident; however, after again reviewing all the file information and weighing the evidence, a probable relationship is not supported.


By letter dated June 30, 2011, the worker was advised that based on the WCB medical opinion noted above, the weight of evidence including history of the injury, diagnosis, expected symptom duration, and the clinical findings supported that he had recovered from the effects of his workplace injury. The WCB was unable to medically relate his ongoing symptoms/condition and subsequent surgery to the November 28, 2008 workplace injury. On July 13, 2011, the worker advisor appealed the decision to Review Office.


On September 8, 2011, Review Office determined that there was no entitlement to benefits or services beyond October 4, 2010 as it related to the worker's current neck and low back difficulties. In relation to the worker's neck difficulties, Review Office noted that the initial diagnosis was a sprain/strain injury and the cervical spine MRI did not show any significant findings related to the workplace accident but rather showed degenerative changes. A structural cause for the worker's ongoing neck difficulties had not been identified. Based on these findings and the time that had passed (23 months), Review Office was unable to find a causal relationship between the worker's current neck difficulties and the workplace accident.


Regarding the worker's low back difficulties, Review Office referred to the January 26, 2009 MRI findings of the lumbar spine and the August 10, 2010 WCB examination. Based on the diagnosis, the lack of radicular signs, the lack of a specific pain generator and the time that had passed, Review Office could not find a causal relationship between the worker's low back difficulties and the workplace accident.


Review Office also determined that the worker was entitled to wage loss benefits beyond October 4, 2010 as it concluded that the worker's right shoulder condition and the need for surgery were related to his compensable injury of November 25, 2008.


By letter dated November 3, 2011, the WCB advised the worker that based on a review of the claim file and after consulting with a WCB medical advisor, it was determined that he had recovered from his right shoulder injury/surgery and that wage loss benefits would end by July 11, 2011.


On May 21, 2014, the Worker Advisor Office asked Review Office to reconsider its decision dated September 8, 2011 based on new medical information which consisted of an MRI report of the lumbar spine dated July 31, 2013, an operative report dated January 24, 2014, reports from the treating orthopedic surgeon dated April 17, 2013, August 13, 2013, February 24, 2014 and a report from the attending physician dated March 24, 2014. The worker advisor submitted that the evidence supported that there was a probable relationship between the worker's 2008 workplace injury and his chronic low back pain that was alleviated with surgery and that WCB benefits should be reinstated retroactively to July 11, 2011.


Prior to considering the May 21, 2014 appeal, Review Office referred the claim file to the WCB's healthcare branch and a WCB orthopedic consultant responded on August 6, 2014. He opined that the clinical findings supported a diagnosis of lumbo-sacral sprain in the environment of pre-existing degenerative lumbar joint disease.


On August 5, 2014, the worker advisor was provided with the orthopedic consultant's opinion and was asked to provide comment. His response to Review Office is dated August 19, 2014.


On September 11, 2014, Review Office determined that no responsibility will be accepted for the worker's low back difficulties beyond October 4, 2010. Review Office indicated that it accepted the WCB orthopedic consultant's opinion and found that the new evidence would not warrant a change to its previous decision.


On August 14, 2015, the worker advisor asked Review Office to reconsider its September 8, 2011 decision to deny responsibility for the worker's neck condition beyond October 4, 2010. The worker advisor submitted that the worker was entitled to wage loss and medical aid benefits, as new medical information along with information already on the claim file established that the worker's chronic neck condition, which persisted until the worker had successful surgical treatment on April 23, 2015, was at least in part causally related to his workplace accident.


Prior to considering the appeal, Review Office obtained further medical advice from the WCB orthopedic consultant concerning the worker's cervical injury in relation to the November 25, 2008 workplace accident. On September 16, 2015, the consultant stated:


1. The diagnosis of the cervical injury of November 25, 2008, was a cervico-thoracic

sprain/strain. This is supported by:

  1. Chiropractic report of November 26, 2008, listing this diagnosis.

  2. Chiropractic report dated December 24, 2008, stating same as above

  3. Attending Physician (A/P) report dated August 13, 2009, noting headaches and trapezius sprain. Previous reports from the A/P dated January 26, 2009, and March 4, 2009, did not mention neck symptoms

2. The neck surgery of May 2015 was described by the surgeon at the six week post-operative visit dated June 9, 2015, as a C6-C7 fusion. This type of surgery is typically carried out for degenerative disc disease and associated arthritic changes.

  1. MRI dated September 20, 2011, reported a broad based disc osteophyte complex at C 6-C7 level, with no foraminal narrowing. There were degenerative changes at C3-C4, C4-C5, and C5-C6 levels.

  2. Orthopaedic spine surgeon opinion dated May 28, 2009, and October 12, 2010, advised against cervical surgery.

  3. Neurosurgical opinion dated May 29, 2009, did not advise cervical surgery, and noted that the sensory symptoms of the right hand did not have a clear radiculopathic character.

3. It is my opinion that the cervical fusion was not required as a result of the November 2008 workplace injury.

4. There is no objective medical evidence that the workplace injury caused enhancement of the degenerative pathology of the cervical spine, which would have been a chronic pre-existing condition.

5. Letters of advocacy from the A/P and the attending orthopaedic surgeon suggest that the pathology of the cervical spine was a combination of traumatic and degenerative etiology. The attending orthopaedic surgeon stated the opinion (June 30, 2015) that the cervical degenerative disease was 75% related to the workplace injury, although qualifying by stating that "it is very difficult, once again, to establish the cause thereof."

6. It would be helpful to have a third party radiologist view the cervical MRI and offer an opinion as to whether there is evidence of traumatic etiology.


In a memorandum dated October 1, 2015, an external neuroradiologist reviewed and provided his opinion regarding imaging studies pertaining to the worker's cervical spine dated August 11, 2009, September 20, 2011, November 24, 2013 and June 6, 2014.


After reviewing the neuroradiologist's findings, the WCB orthopedic consultant stated on October 21, 2015 that there was no change to his previously stated opinion that the pathology of the cervical spine was degenerative rather than traumatic in etiology and that the current difficulties beyond October 2010 were unrelated to the workplace injury.


On October 21, 2015, the worker advisor was provided with the WCB orthopedic consultant's medical opinions and was asked to provide comment. His response to Review Office is dated October 26, 2015.


On November 2, 2015, Review Office determined that there was no entitlement to medical aid benefits in relation to the worker's neck condition beyond October 4, 2010 and there was no entitlement to wage loss benefits beyond July 11, 2011. Review Office recognized that the worker had a significant workplace accident when he fell approximately ten feet. If the fall resulted in a more serious cervical injury other than a strain/strain type of injury, then it would be expected that the MRI findings would be more consistent with a traumatic etiology.


Review Office referred to the external radiologist's comments that the "disc degenerative changes at the C6-7 level progressed very slightly between 2009 and 2014." Review Office indicated the progression of the worker's condition was characteristic of the degenerative processes in his cervical spine. Given that the progression had been described as slight, it was unable to find that the November 2008 workplace injury caused an acceleration of the worker's degenerative changes in his cervical spine as contended by the worker's representative. Review Office concluded that there was no causal relationship between the worker's neck difficulties beyond October 4, 2010 and the November 25, 2008 workplace injury.


On November 5, 2015, the worker advisor appealed Review Office's decisions dated September 11, 2014 and November 2, 2015 to the Appeal Commission and an oral hearing was arranged. On February 18, 2016, the worker advisor provided the Appeal Commission with a further submission for consideration.

Reasons

Applicable Legislation


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.

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 27(1) empowers the WCB to provide such medical aid as the WCB considers necessary to cure and provide relief from an injury. 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.

The worker has an accepted claim for workplace injuries sustained in November 2008. He is seeking further benefits in relation to the workplace injuries.


Worker's Position


The worker was represented by a worker advisor who submitted a written brief to the panel in advance of the hearing. He provided an oral summary of the worker's position. The worker answered questions from the panel.


The worker advisor submitted that the worker was initially diagnosed with strain-type injuries to his back, but with early signs of a sensory problem, both into his legs and later into his arms, that suggested a structural cause of his symptoms. He noted that a CT scan showed a disc protrusion at L5-S1, but an MRI showed a disc bulge at L4-5 with L5 nerve root compression. He said that despite this discrepancy between the two diagnostic tools, the WCB’s medical advisor accepted that a low back disc injury had been caused by the workplace accident.


He noted that when conservative treatment failed, surgery had been considered, but this was not seen as a solution. Eventually an orthopedic surgeon, who had initially refused to perform surgery, performed surgery and noted that the worker has experienced a significant reduction in his low back pain from the surgery.


The worker advisor noted that while the WCB has concluded that the worker's back difficulties are solely due to degenerative changes, the orthopedic surgeon opined that the chronic low back pain and the need for surgery were causally related to the 2008 workplace accident.


The worker advisor also noted that the worker was first diagnosed with a sprain injury to his neck, but radicular signs were present. An MRI showed degenerative changes in the cervical spine with a disc complex at C6 and C7 that indented on the spinal cord. He said that conservative measures were ineffective but that surgical treatment was not recommended. However, an orthopedic surgeon proceeded with surgery and fused the discs at C6-C7, due to the chronic pain and persistent headaches the worker had for years. The worker advisor reported that the surgeries resolved these symptoms.


He noted that the WCB denied responsibility for the worker's neck and back, citing that there was no structural cause identified for the persistent symptoms, and claimed that degenerative changes were responsible for all his problems. The worker advisor submitted, however, that more weight should be afforded to the operating orthopedic surgeon's opinion as he was able to provide relief to the worker, both for his chronic back and neck pain. He submitted further that it is more than probable that the worker's low back and neck difficulties were due to a combined effect of these degenerative changes and his workplace accident.


In answer to questions, the worker advised:


  • he worked for the employer for about 10 years before the accident

  • he drove truck, low bed equipment, all gravel, anything to do with road construction or open pit mining, working in northern Manitoba

  • he had no back problems prior to the workplace accident

  • he attended a chiropractor after the accident but did not think the treatments helped

  • he attended work hardening but this was discontinued

  • the pain in his neck, back and shoulder was continuous

  • he became depressed due to the pain and the inability to work

  • he had surgery and the operating orthopedic surgeon advised that he can return to truck driving without restrictions

  • he participated in post-operative physiotherapy and was fit to return to work about 13 to 14 months after the surgery

  • he has no more neck or back pain


The worker described the accident and subsequent symptoms. He said he fell from a loader which was loaded on a flatbed "I leaned back, and I lost my footing and I fell and hit the lowbed, and hit the ground." He was unsure whether he lost consciousness when he fell. His hip and low back were sore and when he started driving the truck again, he developed a headache, his neck just started tightening up, and his shoulder and arm started hurting. He said it took about 2 hours to drive back to the employer's premises after the accident.


In answer to a question from the panel regarding the opinion of the neuroradiologist who reviewed the MRIs on the claim, the worker advisor commented:


…my first response would be, we don’t have a pre-accident MRI, so if there was a change between November 24, 2008 and November 26, 2008, we don’t have that. So this is post-accident only. I question [neuroradiologist's] opinion in terms of…he has no clinical information, no specific questions, no context whatsoever. So the value of his opinion, in my view, is very little. That said, he made an assessment, he found very slight change. It is change…I don’t think that the degree of change is necessarily responsible for the degree of symptoms…


Now, contrasting that with [operating orthopedic surgeon], he’s looking at precisely the opposite of what [neuroradiologist] lacks, the context, the clinical findings, and the discussion with [worker] in terms of his experience. So when he’s saying, 75 percent worker’s compensationable (sic) claim, versus 25 percent, I think he’s talking about the context of the clinical findings, not specifically the progression as seen on the MRI.


He said that even with limited findings, the orthopedic surgeon agreed to proceed with the surgery which has resulted in a complete resolution of those symptoms.


In closing, the worker advisor commented that the clinical picture is not one of degenerative conditions which wax and wane:


There’s pain, it’s consistent and it’s constant. Conservative measures do nothing, and nobody wants to do surgery. Nobody thinks there’s evidence to suggest that surgery is needed…


Even, freely admit, [operating orthopedic surgeon] wasn’t excited about doing it either. The fact of the matter is he did and it’s resolved the worker’s pain. He’s able to go back to work. He wants to go back to work.


Employer's Position


The employer did not participate in the hearing.



Analysis


The worker is seeking further benefits arising out of his 2008 accident pertaining to this cervical and low back injuries. In his 2008 workplace accident, the worker injured his neck, low back and right shoulder. The WCB ceased responsibility for his neck, low back and shoulder but ultimately continued to cover his right shoulder injury until it was surgically repaired. Wage loss benefits were paid in relation to the shoulder until July 2011.

Issue 1. Whether the worker is entitled to benefits after October 4, 2010 in relation to his cervical and low back difficulties.


For the worker's appeal of this issue to be approved, the panel must find that the worker continued to require benefits as a result of the cervical and low back injuries he sustained in the 2008 accident. The panel was not able to make this finding.


Upon consideration of all the evidence, the panel finds that the worker sustained a sprain/strain injury to his neck and back when he fell off the loader at work on November 25, 2008. The panel finds further that the worker's neck and back sprain/strain resolved by October 4, 2010. With respect to the worker's ongoing symptoms and resulting surgery, the panel notes that the worker has a significant degenerative spine which has been well documented throughout the claim.


Cervical Spine:


The panel is unable to relate the worker's neck surgery to his workplace accident. In reaching this decision, the panel attaches significant weigh to the opinion of the neuroradiologist who compared the various MRI scans of the worker's neck from August 11, 2009 to June 6, 2014. The neuroradiologist reported that:


Overall. There are very mild degenerative changes at the C3-4, C5-7. And C6-7 levels. The findings at the C3-4 level remain unchanged between 2009 and 2014. The disc degenerative changes at the C5-6 level are essentially unchanged between 2009 and 2014. The disc degenerative changes at the C6-7 level progressed very slightly between 2009 and 2014. No other abnormality is identified.

The panel notes this opinion differs from that of the orthopedic surgeon who operated on the worker, and reported "progressive degenerative changes in both the cervical spine and lumbar spine." The panel attaches greater weight to the neuroradiologist's opinion to that of the orthopedic surgeon. The panel notes the neuroradiologist is an expert in reading/interpreting MRI scans that affect the nervous system.


In addition to a lack of radiological evidence of acceleration of the worker's cervical disc disease, the panel notes that the worker was examined by a WCB medical advisor in August 2010. The medical advisor reported that the examination of the worker:

"produced findings of diffuse, non-specific tenderness in the posterior cervical and trapezii areas as well as the lower back and upper buttock regions. All regions seemed essentially equally tender with no distinct structures identified to suggest a specific pain generator."


He noted the examination did not produce subjective findings of a radiculopathy in the upper or lower extremities and provided a diagnosis of "non-specific posterior cervical/shoulder pain."


The panel also attaches weight to the opinions of the WCB orthopedic consultant, including the September 16, 2015 opinion noted in the background.


Lower Back:


With respect to the worker's lower back, the panel notes that the medical advisor, who examined the worker in August 2010, provided a diagnosis of non-specific pain of the lower back/upper buttocks.


The panel also notes and relies upon the August 6, 2014 opinion of the WCB orthopedic consultant regarding the relationship between the worker's low back surgery and 2008 accident:

1. Chiropractic examination dated November 26, 2008, was reported as pointing to diagnoses of right rotator cuff tear, right lumbo-sacral sprain and cervico-thoracic sprain/strain. I concur that the clinical findings supported a diagnosis of lumbo- sacral sprain in the environment of pre-existing degenerative lumbar joint disease.

2. Following imaging studies of the lumbar spine, a spine orthopaedic consultation occurred on May 28, 2009, and neurosurgical consultation occurred on May 29, 2009. Further imaging of the cervical and thoracic spine occurred and further orthopaedic review was on September 1, 2009. The outcome of these consultations was that the structural changes in the spine were degenerative in nature, and there was not an indication for surgical intervention.

a) On August 13, 2013, a surgeon advised "x-stop" surgery. The apparent reason for surgery was facet OA with spinal foraminal stenosis.

b) The procedure on January 24, 2014, was a facetectomy, "debridement of nerve root", and insertion of the metallic "x-stop" device between the posterior spinous processes to prevent spine extension movements. Disc exploration was not described.

3. The surgery of January 24, 2014, was directed at a chronic degenerative condition and was not related to any diagnosis of trauma. The natural history of degenerative joint disease of the spine would be of episodes of back pain and radiating limb pain, the episodes becoming of increasing frequency and severity over the years.

a) There is no objective medical evidence that the workplace injury caused, aggravated or enhanced the pre-existing chronic degenerative pathology of the lumbar spine.


In conclusion, the panel is not able to relate the findings of the worker's orthopedic surgeon regarding the worker's cervical and lumbar spine to the 2008 injury.


The worker's appeal on this issue is dismissed.


Issue 2. Whether the worker is entitled to wage loss benefits after July 11, 2011?


The panel notes that the worker received wage loss benefits to July 11, 2011 in relation to his right shoulder injury which arose from this claim. He was found to have recovered from the shoulder injury by July 11, 2011. There was no evidence or argument advanced at the hearing that he continued to be entitled to benefits after July 11, 2011 for the shoulder injury


Given the panel's decision on issue 1 above, that the worker is not entitled to benefits after October 4, 2010 in relation to his cervical and low back difficulties, the panel finds that the worker is not entitled to wage loss benefits after July 11, 2011.


The worker's appeal on this issue is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
S. Briscoe, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer

Signed at Winnipeg this 19th day of April, 2016

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