Decision #161/16 - Type: Workers Compensation

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after July 26, 2012 with respect to his compensation claim. A hearing was held on September 28, 2016 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after July 26, 2012.

Decision

That the worker is not entitled to benefits after July 26, 2012.

Background

On March 26, 2012, the worker filed a claim with the WCB for multiple injuries he sustained in a work-related accident on March 23, 2012. The worker described the accident as follows:

We were moving material, I tripped over a floor joist and I wasn't carrying anything and I was going to fall on my groin and I tried to jump onto the next joist and I had so much momentum going I had to keep running to the end where there was no material and before I hit the end I tripped and I put my arms up to stop my head from hitting a joist and my hands missed and I hit the joist with my face between my eyes and I don't think I was knocked out, I fell on the floor joists.

I hurt my face, head and I wasn't wearing glasses and I also hurt my back, right shoulder the pain is all over, my left lower leg/shin (I landed on my varicose veins and they burst and I was bleeding from my left lower leg). I was also bleeding from between my eyes. This happened at approximately 4:00 p.m. and there was just me and [co-worker] on the job site.

The Employer's Accident Report confirmed that the worker was injured at work on March 23, 2012 and he reported the accident on March 31, 2012.

Medical reports on file showed that the worker was treated at a local hospital facility on March 23, 2012 and was diagnosed with a forehead laceration and a concussion.

A Doctor's First Report dated April 12, 2012, outlined examination findings of tenderness in the right shoulder and deltoid and decreased range of motion. The diagnosis was right rotator cuff tendinitis.

An x-ray report of the cervical spine dated April 12, 2012 showed severe degenerative narrowing at C5-C6. The right clavicle was read as being normal and the right shoulder showed no evidence of calcific tendonitis or other significant abnormality.

In a progress report dated May 3, 2012, the treating physician stated the worker had severe pain in his neck and right shoulder.

On May 22, 2012, an MRI of the right shoulder revealed moderate AC arthrosis, abnormal signal anterior insertion supraspinatus, precise etiology uncertain, and short segment posterior labral tear.

On May 26, 2012, an MRI of the cervical spine showed a mildly prominent central canal at the C5-6 level.

The worker was assessed by a WCB sports medicine advisor on July 12, 2012. The advisor stated the MRI findings related to the cervical spine dated May 26, 2012 demonstrated pre-existing degenerative changes at the lower cervical spine with no radiological evidence of an acute neurological lesion. The findings on examination were not indicative of a cervical radiculopathy.

The medical advisor noted that causes of posterior labral tears typically relate to internal impingement of the shoulder (usually seen with repetitive overhead activity) or can be seen following an episode of posterior glenohumeral instability. Rotator cuff tendinopathy was a consequence of tendon degeneration in the shoulder or can be associated with repetitive overhead activity. The AC joint arthrosis was a degenerative condition of the shoulder. The cervical spine findings noted on the MRI were also a consequence of degenerative changes.

The medical advisor further stated:

On a balance of probabilities, the above-noted diagnoses relate to pre-existing conditions at the neck and right shoulder. They do not appear to be accounted for by the reported mechanism of injury.

The initial diagnosis concerning [the worker's] right shoulder and neck would have been consistent with strain-type injuries, however the current presentation does not appear to be accounted for on this basis. The report of worsening neck pain is also not concordant with the natural history of a strain.

In a decision dated July 19, 2012, the worker was advised that following review of the WCB examination findings of July 12 and review of the medical information on file, it was the opinion of the WCB medical advisor that all his current symptoms were due to pre-existing conditions shown on the MRI and could not be medically accounted for in relation to the March 23 workplace injury. It was the WCB's position that he had recovered from the forehead laceration and right shoulder strain injuries that he sustained in the accident. The WCB was unable to account for the current diagnoses in relation to his workplace injury and he was not entitled to further wage loss or medical aid expenses.

Further reports showed that the worker was assessed by a physiotherapist on July 16, 2012. The diagnoses were strain/discogenic cervical region and right shoulder and low back strain.

On July 4, 2012, the worker was seen by a specialist and was diagnosed with right AC joint arthralgia, cervical referral, and regional myofascial pain.

In a doctor progress report for an examination on July 13, 2012, the treating physician's diagnosis was cervical spondylosis, rotator cuff tendinitis, myofascial neck pain and AC arthrosis.

On December 12, 2012, an occupational health physician reported that he saw the worker on September 27, 2012 for an assessment. The specialist stated:

By my assessment, [the worker's] right shoulder girdle and back extensors are quite hypertonic and readily irritated. The mechanism of the March 2012 work injury involves direct impact of contusion to the AC joint of the right shoulder, with jarring impact sustained on the forehead resulting in a whiplash-type injury to the neck musculature with recurrent torticollis and myofascial pain referral from posterior and suboccipital muscles groups. Both neck symptoms and the anterior shoulder complaints are new onsets, directly related to the work injury in question. Neck related symptoms have been much more prominent unlike the chronic pre-injury pattern of right shoulder impairments. When examined, the tenderness in the neck, muscle hypertonis, the postural imbalance with a left shift, myofascial pain referral in the upper levels into the head all point toward muscle based myofascial dysfunction, with little relation to the degenerative radiographic changes at C5-6.

…

[The worker] does have a history of chronic right shoulder pain and dysfunction which affects his ability to sustain full time work as a labourer; this was aggravated by the injury, and contributes to the extent and duration of the injury's impact. This complicates appropriate management and at what point injury-related treatment returns him to his pre-injury baseline, but it is wrong that he was altogether denied any treatment. The nature of his underlying condition is more myofascial than orthopedic, but WCB cites the radiographic evidence of degenerative changes in lower cervical spine and shoulder to justify their position to deny his claim.

In a report to the case manager dated December 31, 2012, the treating physician stated:

[The worker] does have a history of chronic right shoulder pain and dysfunction which affects his ability to sustain full time work as a labourer, this was aggravated by the injury on March 23, 2012, which contributed to the extent and duration of the injury's impact. The nature of his underlying condition is more myofascial than orthopedic.

On January 4, 2013, a WCB sport medicine advisor stated that the worker's current presentation involving his right shoulder girdle, neck and back were not medically related to the March 2012 workplace injury.

In a decision dated January 9, 2013, the worker was advised that the WCB was unable to accept that his ongoing symptoms in his neck, the upper extremity of his back at the base of his neck, head and right shoulder were related to the workplace injury of March 23, 2012. On July 24, 2013, a worker advisor appealed the case manager's decision to Review Office.

In a decision dated September 26, 2013, Review Office confirmed there was no entitlement to benefits beyond July 26, 2012. Review Office reviewed all the medical information and agreed with the WCB sports medicine advisor's opinion following the July 12, 2012 examination. With respect to the December 12, 2012 report from the occupational health physician, Review Office found that the worker had a known history of neck, right shoulder and back difficulties. It agreed with the specialist's opinion that the worker's fall bruised his right shoulder. It did not find that this bruising and/or strain to the right shoulder aggravated or enhanced the worker's pre-existing condition.

Review Office concluded that a relationship could not be established between the compensable diagnoses and the worker's ongoing difficulties. On April 29, 2016, the worker appealed Review Office's decision to the Appeal Commission through his legal representative and an oral 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 WCB 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) provides that medical aid will be paid by the WCB for so long as is necessary to cure and provide relief from the 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 an injury arising from a March 2012 accident. He is seeking wage loss benefits after July 26, 2012.

Worker's Position

The worker was represented by legal counsel.

The worker's counsel called as a witness, an occupational health clinic physician (consulting physician) who has served as a consultant on the worker's case. The consulting physician advised that he first saw the worker in 1997 and saw him again in 2012 and continued to see him "probably twice a year" since then. He advised that he did not provide treatment. Regarding the worker's current condition, the consulting physician advised that the worker:

Virtually has no neck rotation and moves trunkally, in pain, because of the problems in his neck and his shoulder.

His range of motion in the shoulders is much reduced in the last year. He's had a few shoulder injections of corticosteroid into his shoulder joint, which was a new site of intervention…

An MRI has shown some fairly mild degeneration in the shoulder joint which has been gradual…I think his biggest problem is his shoulder girdle muscles and in the neck, down in the spine, in and around the left hip.

He said that the head and neck involvement arose from the accident and the shoulder issues virtually doubled in intensity. Regarding his low back complaints the consulting physician advised that these are influenced by flare-ups of his shoulder and neck injuries.

The consulting physician was asked which of the current diagnoses he considered to be directly associated with the acute injury. He responded from the T12 up, involving his shoulder blades. Regarding the movement of the symptoms from right shoulder to include left shoulder, he advised:

primarily due to the extent of reactive muscle guarding, stiffness has yield, causes the neck to be so restricted and tight that definitely some of these same muscles that are respiratory, that are part of your neck posture also determine the positioning of your shoulders, and when you tense up

Regarding the worker's shoulders, the consulting physician commented that:

The main problem, and the one that is continuous is, I’m aware of the dominant musculoskeletal, the muscles and tendons without tears, the kind of strain, myofascial pain condition…

The consulting physician advised that "none of the treatments he’s had are curative by any means." He acknowledged that there has not been substantial improvement with three years of treatment.

The consulting physician commented that the worker hasn’t been able to work and is not fit to work since 2012. When asked about a 2014 accident, the physician had a vague recall of a 2014 accident claim, but was unaware that the worker reported that he was working between 9.5 and 12 hours per day.

The consulting physician advised that the worker's presentation at the hearing is different from the last time he saw the worker and that elements of his posture are more pronounced now.

The worker's counsel and the panel asked the worker questions. In answer to the questions the worker provided information on his work history, duties and treatments including:

  • he is presently 46 years of age 
  • he is not currently working
  • in 1994 he was injured working in a plant where he handled large pieces of animal meat
  • he injured his
    • "right hand, went into my elbow, which then led into the top of my neck and back, but then that affected, I believe, my legs as well. And it just started in one area, and it seemed to…"
  • he went back to school in 1997 • he still had pain in "shoulder, arms, or arm, and the lower back"
  • he commenced working as a framer in construction in 2001 • he injured his hand in 2008 but it recovered
  • he was injured again in 2012
  • the 2012 accident occurred when he tripped while walking over floor joists. He advised that" I put my hands up, because I knew I was going to fall, to protect my face, and when I opened my eyes my hands were dangling between the floor joists and blood was coming out of my head."
  • the 2012 accident caused injury to his right shoulder, head, shin and bruising in the middle of his chest
  • the symptoms started the following week when he went back to work
  • he ceased working and remained off work until February 2013
  • he stopped working in April 2016
  • he continues to suffer from the 2012 injury
  • his shoulder is the least of his problems now, his spine is the main problem
  • the pain in the spine is between his shoulder blades
  • the pain in the left shoulder is in the muscles
  • he receives dry needling in the back, neck and head
  • his physicians are considering a total shoulder replacement
  • his right shoulder complaints were there before the 2012 injury but the severity and the disability associated with them in terms of employability markedly increased

With respect to the 2014 claim where he indicated he worked for 9.5 hours each day, the worker advised that he wasn’t working the hours noted on the claim form. He explained that his employer:

allowed me to show up to work so I could collect a cheque. I was basically the safety person, because he works by himself primarily, unless I’m there.

He explained that his duties in 2014 involved:

handing him things when need be, but most of the time it was just standing, and the laying down when need be. The 12-hour days were because he had taken a job out of town.

In answer to a question about arthrogram guided injections, the worker advised that:

It definitely helped. It doesn’t -- it stops the shooting pain from the middle of the bone, but it doesn’t stop the bruising sensation in the socket. So I’ve been waiting -- it lasted approximately three weeks last time, and I’m just trying to wait as long as I can in between injections…

The worker's counsel submitted that the worker's current difficulties are due to the worker's 2012 injury. He relied upon the evidence of the consulting physician and the reports from the treating specialist. He noted that the treating specialist confirmed that the worker is unemployable, and that all the worker's problems are due to the accident that he suffered in 2012. Counsel suggested that the Workers Compensation Board erred in cutting off his benefits three months after his 2012 accident. He asked that the panel make a finding that he is entitled to have his workers compensation benefits restored retroactive to the date that he was cut off.

Employer's Position

The employer did not participate in the hearing.

Analysis

The worker has an accepted claim for a workplace injury and is seeking benefits after July 26, 2012. For the worker's claim to be accepted, the panel must find that the worker sustained a loss of earning capacity and required medical aid benefits as a result of his workplace accident after July 26, 2012. Upon consideration of all the evidence, including the testimony at the hearing, the panel was not able to find that the worker's loss of earnings and need for medical aid after July 26, 2012 are related to the workplace injury.

Part of our process in assessing this appeal and determining the benefits the worker is entitled to is to determine which of his current injury complaints are related to the original accident in March 2012. In this regard, the panel places significant weight on the medical information nearest the injury to establish the injuries he sustained in the 2012 accident. The panel relies on the following information:

  • initial hospital records, based on a March 24, 2012 attendance, indicate a diagnosis of facial lacerations and concussion. 
  • Doctor First Report, based on a March 29, 2012 examination, indicates "complaints of headaches, worse with bending and forward and changing position, body aches 2nd to fall, bruised R shoulder, bruised R upper chest & bruise to the anterior aspect of the L lower leg. The physician notes "laceration to fore-head, healing well, post-concussion headache, soft tissue bruising"

Regarding the reference to a concussion in the hospital report and Doctor First Report, the panel notes there was no reference at the hearing to evidence that the worker sustained a loss of bnconsciousness or was unable to remember the events surrounding the accident. In addition, the worker advised that he drove himself to the hospital. At the hearing, the worker was able to recall the events surrounding his fall onto the joists in a detailed manner. The panel finds that it is unlikely that the worker sustained a concussion injury but in any case, he is not currently being treated for a post-concussion injury.

At the hearing, the worker indicated that both his shoulders cause pain. The panel notes that prior to the injury the worker was treated for right shoulder and neck issues. The panel notes a report prepared by the consulting physician dated May 29, 1997 indicates the worker suffers from muscle aching throughout the upper limbs into the shoulder and neck and opines that the symptoms are "consistent with pain of myofascial origin." The panel also notes that a May 22, 2012 MRI of the right shoulder identified degenerative conditions which are not related to the accident. The panel finds the worker's right shoulder condition to be a pre-existing condition and that the evidence does not establish that the condition was aggravated or enhanced.

The worker indicated that he had pain in his left shoulder. The panel notes that the left shoulder was not injured in the accident. The worker's consulting physician advised that the muscular problem from the right shoulder moved to the left shoulder "primarily due to the extent of reactive muscle guarding…"

The panel notes that the right shoulder condition is pre-existing and that the changes caused by the right shoulder to the left shoulder are not compensable. The worker told the panel that his main problem is pain in the spine in between his shoulder blades.

Regarding concerns about the worker's mid and low back, the consulting physician advised that the low back symptoms are influenced by flare-ups of his shoulder and neck injuries. The panel notes that the worker's back was not reported as being injured in the early medical reports and finds that it is not related to the accident.

With respect to the worker's complaints of neck pain, the panel notes that the worker was treated for neck pain long before the workplace injury as noted in the report from the consulting physician. The panel also notes that a May 26, 2012 MRI of the cervical spine noted mild posterior disc/osteophyte at the C6 level mildly effacing the sac. The panel finds that the worker's neck condition is a pre-existing condition. The panel finds that the evidence does not establish that the current neck difficulties are related to the workplace injury.

The panel places weight upon the July 12, 2012 opinion of the WCB sports medicine physician who examined the worker and found that the worker's diagnoses relate to pre-existing conditions and do not appear to be accounted for by the reported mechanism of injury.

Finally, while the panel recognizes the expertise of the consulting physician, the panel is not able to attach significant weight to his opinion on the worker's condition post-accident, particularly with respect to the worker's ability to perform work. The panel notes that the physician advised the panel that the worker was not able to work after the 2012 injury. In contrast, the worker advised the panel that he worked after the injury and at times for very long days. The panel finds that worker's evidence contradicts the physician's opinion.

The panel finds, on a balance of probabilities, that the worker is not entitled to benefits after July 26, 2012. The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
P. Walker, Commissioner

Recording Secretary, B. Kosc

A. Scramstad - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 3rd day of November, 2016

Back