The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that his claim for compensation was not acceptable. A hearing was held on September 1, 2016 to consider the worker's appeal.

Issue

Whether or not the claim is acceptable.

Decision

That the claim is not acceptable.

Background

On August 20, 2015, the worker filed a claim with the WCB for injury to his left shoulder, neck and upper back. The worker reported that he began to notice symptoms at work about one year ago. He said he took Tylenol because of his shoulder pain, sought treatment from two chiropractors and a massage therapist, and attended a sports medicine clinic. The worker attributed his injuries to his job duties including lifting and grabbing heavy boxes at work and hanging doors by himself. He said he cannot work overhead as his arm goes numb and tingly and he has annoying shoulder pain. When putting on bumpers, he has to lie on the ground to look underneath to put clips on and his arm goes crazy when he does this.

The first medical report was from the treating chiropractor dated August 10, 2015 who stated that the worker was seen on August 5, 2015 with complaints of left shoulder and arm pain for approximately a 12 month period. The examination showed that the worker had radicular arm pain into the left thumb with left lateral bend of his cervical spine. The worker was scheduled for an MRI and was instructed to avoid all positions that involved twisting or bending of his neck until the MRI results were obtained.

In a further report for an examination on August 24, 2015, the chiropractor diagnosed the worker with cervical vertebral subluxation complex.

On September 9, 2015, a physician from a sports medicine clinic diagnosed the worker with left C6 radiculopathy.

In a decision dated September 17, 2015, the worker was advised that the WCB was denying his claim for compensation as the file information did not establish a relationship between the injury and an accident as defined under subsection 1(1) of The Workers Compensation Act (the "Act").

The decision stated, in part, that the worker related his condition to his workplace duties that involved heavy lifting and awkward positioning. There were no witnesses to an incident and he did not report an injury to his employer. When seen by a physician on January 19, 2015, he had reported a spontaneous onset of symptoms 6 months prior and did not indicate a work-related cause.

On September 23, 2015, the worker advised the WCB that he recalled installing a headliner in a car on August 20, 2015 and when reaching up to install screws, his left shoulder and arm started tingling, followed by pins and needles. The worker advised that when he raised his head while looking up, the same symptoms occurred. The worker said before August 20, 2015, he had always been able to complete his jobs and that he was now in pain on a daily basis.

On October 6, 2015, a WCB medical advisor noted a spontaneous onset of symptoms in the worker's left shoulder 6 months prior to the physician's exam of January 19, 2015 and a diagnosis of left C6 radiculopathy on September 9, 2015. The medical advisor indicated there was no documented mechanism of injury to account for this diagnosis; the worker also reported his symptoms to have occurred on August 20, 2015 while reaching up with his left arm and looking up with his neck in an awkward position. Symptoms apparently resolved when the worker moved his arm and neck back into a resting position. The onset of symptoms during this type of movement/neck position would be expected in the setting of a cervical radiculopathy. He concluded that the medical evidence did not substantiate a probable causal relationship between the worker's August 20, 2015 workplace incident and the diagnosis provided by the treating physician.

On October 15, 2015, the worker was advised that the WCB considered the new information regarding the incident on August 20, 2015 but was still unable to approve his claim.

On December 17, 2015, a worker advisor submitted a cervical spine MRI dated October 5, 2015 which showed severe left foraminal narrowing at the C5-6 level which correlated with the description of a left C-6 radiculopathy. The worker advisor outlined the opinion that the August 20, 2015 incident of installing a headliner in an awkward position aggravated the worker's severe pre-existing condition and resulted in time loss.

In response to questions, a WCB medical advisor stated on January 8, 2016:

The October 5/15 MRI confirms [worker] to have degenerative changes in the cervical spine with severe left foraminal narrowing at the C5-C6 level correlating with his clinical C6 radiculopathy. The MRI findings are on balance not accounted for in relation to the August 1/15 (sic) incident, or the reported work duties in general. Rather, they are degenerative in nature.

On January 18, 2016, the worker was advised that after considering the information provided by the treating chiropractor dated August 5 and 24, 2015 and the medical reports and the MRI from the treating physician, the WCB was unable to establish that there was an aggravation of his pre-existing left shoulder/cervical spine condition on August 20, 2015 as there was no change in his condition before and after August 20, 2015. On February 1, 2016, the worker advisor appealed the decision to Review Office.

On February 19, 2016, Review Office confirmed that the worker's claim was not acceptable. Review Office noted the worker advisor's position that the worker's condition was exacerbated on August 20, 2015 when he looked up to perform overhead duties and that this made his pre-existing condition worse.

Review Office stated: "Experiencing symptoms that occur with activity or specific movements is not evidence of an injury arising out of, and in the course of, employment." It stated the worker had experienced these symptoms prior. The worker's neck condition which led to the C6 radicular symptoms did not occur as a result of work or his regular duties.

On March 1, 2016, the worker appealed Review Office's decision to the Appeal Commission and a hearing was arranged.

Reasons

Applicable Legislation and Policy:

The Appeal Commission and its panels are bound by the Act, regulations and policies of the Board of Directors.

Subsections 1(1) and 4(1) of the Act set out the circumstances under which claims for injuries can be accepted, and state that the worker must have suffered an injury by accident that arose out of and in the course of employment. Once such an injury has been established, the worker is entitled to the benefits provided under the Act.

WCB Policy 44.10.20.10, Pre-Existing Conditions (the "policy") states in part:

…when it is determined that the worker's inability to work is a result of a compensable injury and evidence suggests, on a balance of probabilities, that the compensable injury, or the compensable injury in concert with the pre-existing condition, is causing the on-going loss of earning capacity the WCB would pay so long as the loss of earning capacity continues.

The policy offers the following definitions:

A pre-existing condition is a medical condition that existed prior to the compensable injury.

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

Enhancement: When a compensable injury permanently adversely affects a pre-existing condition.

Worker's position:

The worker was represented by a worker advisor who made a presentation on his behalf. The worker answered questions asked by his representative and the panel.

It was submitted that the worker's incident on August 20, 2015 caused an increase in his pre-existing neck, left shoulder and upper back condition that resulted in a loss of earning capacity. The worker had reported to his employer after this incident that his neck and left shoulder symptoms had become worse and he could not continue working that day. The worker also filed a WCB claim the same day.

It was further submitted that the medical information on file supports the worker was not able to maintain positions required for his mechanical work following the August 20, 2015 incident. This is supported by a chiropractor's report of August 10, 2015 indicating that the worker was to avoid positions involving twisting or bending of the neck. A chiropractor's report dated August 24, 2015 showed "Pain into L shoulder & hand after working over his head & doing repetitive motions."

In summary, it was the worker's position that while he had a known pre-existing neck condition for which he was receiving treatment, he was able to perform his employment duties with this condition until August 20, 2015 when his condition became worse after installing a headliner.

Employer's position:

The employer did not participate in the appeal.

Analysis:

This appeal deals with claim acceptance. In order for the worker's appeal to be successful, the panel must find that his work duties on August 20, 2015 caused an injury to his neck and left shoulder that arose out of and in the course of his employment. For the reasons that follow, the panel is unable to make that finding.

The panel explored with the worker the condition of his neck and left shoulder both prior to and after the August 20, 2015 incident. The worker acknowledged that his memory of that period was not all that good and he was unsure of the sequence of events. The panel then discussed the file documents regarding the worker's comments when he first filed his claim in August 2015. The worker acknowledged that his comments to the WCB and his physicians were an accurate representation of his recollection. The panel therefore places greater weight on the earlier contemporaneous evidence on the file.

In response to the panel's questions, the worker confirmed he had medical issues about one year prior to August 2015 which were first noticeable in the evenings after work; his left shoulder would hurt and he got relief by taking Tylenol. After a couple of months, he sought treatment from his chiropractor who referred him to a sports medicine clinic in February 2015 who advised to do more exercise.

As the worker's symptoms began to worsen, he sought treatment from a massage therapist who felt he had a nerve issue in his neck which prompted a return to the sports clinic where he was administered a cortisone injection. The injection did not provide relief of his pain, noted to be at times unbearable, he then sought treatment from a different chiropractor who began to adjust his neck. The chiropractor told him that he felt it was a serious condition that would take time to resolve. The chiropractor also told him that working in awkward positions was not helping him with pain relief.

The WCB incident report notes he had spoken to his supervisor regarding "his left shoulder killing him" in May 2015, 3 months before the August incident. He also told the shop manager in July 2015 there was something big going on and he was undergoing various treatments for relief of his pain.

The incident report notes "he was unable to continue working overhead, his arm goes numb and tingly and has annoying pain at his shoulder." He further noted that if he sits in certain chairs or even driving he has pain, and a feeling that "my arm is falling asleep."

During the hearing the worker also acknowledged his ongoing upper body issues and the associated symptoms and functional limitations:

* My shoulder would bug me at work but I would work through it, my shoulder would be worse after supper when I tried to relax. * …kept going like that and it was getting a little bit worse, but I could still work…it would be there for a few minutes and would go away. * Hurting would be months later…six months later…actually, for the longest time, I don't know what the term is, frozen shoulder or frozen elbow…for the longest time I thought that's what I had, because it would come and go…it depended on what I did during the day with my neck…and all of a sudden, I would come home and then it's there and then it would be more frequently later on. * …I would sit at home and I had to sit straight up and like, as soon as I did the wrong movement, then my neck, the whole thing started again, like the arm pain, then it would shoot down my arm. I had to find the right chair and, so I could sit…just having the neck in the perfect position and yes, not fun. * I even had a hard time driving…if you sit in the car, I didn't have the seat just right, where my neck would be in the position or whatever, looking sideways, yes, that got rid of it. * The pain -- it's like someone put a vise grip on there and then it kind of shot down my arm. And then the tingling in the thumb and first two fingers.

The panel finds the evidence shows a gradual worsening of symptoms over time, beginning one year prior to August 20, 2015, that prompted the worker to seek ongoing treatment in that same period.

After the incident in August 2015, the worker commented that his chiropractor increased his treatments from once per week to three times a week; he did the same adjustments "just more of them, more of the same." After three months off work, he was able to return to his job and the same duties when he went back to work. He advised that:

I'm still doing the same things, but careful. Like, instead of reaching too far to undo something, I'll move, and that was one of the things. I'm in a better position where I'm not trying. I have to change a lot of the stuff that I do, and slowed me down a little bit here and there. …

Usually your car has a whole bunch of clips underneath that we have to undo to take the bumper off. Instead of reaching right across the car to undo that clip, and putting extra stress on the neck and all that stuff, move and you do it right in front of where it's not as painful…even now when I put a headliner in, I'll sit in the seat, recline it so my neck is still somewhat straight, instead of doing the major twist.

The panel also carefully reviewed the medical information prior to August 20, 2015 regarding symptomology, and finds that the evidence supports a gradual worsening of the worker's pre-existing condition, rather than an aggravation or enhancement on August 20, 2015.

The sports medicine specialist recorded the symptoms on January 19, 2015 as - six month spontaneous onset, pain more at rest, aching shoulder, no limited function, chiro 3 months not much help; on June 30, 2015 as - minimal improvement, pain at night, better with activity, localized to shoulder, radiating through upper arm; on August 9, 2015 as - evolving symptoms, little change with injection now more through arm rather than shoulder, worse with movement, at rest, hard to find a comfortable position, radiation into D2-3, flickering bicep, seeing chiro; on September 9, 2015 as - symptoms essentially unchanged, difficulty with prolonged fixed positions, now off work, unable to maintain positions required for his mechanical work, radiation into D2 l hand, worse with neck extension.

The panel finds the record of the sports medicine specialist shows a steady progression of symptoms that did not change, either by aggravation or enhancement in the period after August 20, 2015.

The MRI findings were also reviewed along with the WCB medical consultant's opinion. From C2 - T1, cervical to thoracic spines, the findings included disc osteophyte complex, process spurring, foraminal narrowing and facet arthrosis. The panel's understanding of these findings is that they are degenerative in nature and are common findings in most 49 year old males. The panel was unable to establish an acute insult to the cervical spine.

The panel places weight on the WCB medical advisor who opined, on January 8, 2016, that:

…MRI confirms [worker] to have degenerative changes in the cervical spine…on balance not accounted for in relation to the August 1/15 (sic) incident, or the reported work duties in general. Rather, they are degenerative in nature.

Based on the foregoing, the panel finds the worker's neck and left upper extremity issues did not arise out of or in course of his employment specifically related to his job duties or an incident occurring on August 20, 2015.

Accordingly, the panel finds the claim is not acceptable.

The worker's appeal is dismissed.

Panel Members

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

Recording Secretary, B. Kosc

P. Walker - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 17th day of October, 2016