The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing decisions made by the Workers Compensation Board ("WCB") regarding his claim for a neck injury that occurred on December 21, 2007. A hearing was held on October 27, 2016 to consider the worker's appeal.

Issue

Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4); and

Whether or not the worker is entitled to benefits after December 29, 2014.

Decision

The Medical Review Panel issue was not pursued by the worker at the hearing; and

That the worker is not entitled to benefits after December 29, 2014.

Background

On February 1, 2008, the worker filed a claim with the WCB for a neck injury that occurred on December 21, 2007 during the course of his employment as a truck driver. The worker reported that his injury occurred when he hit a big bump in the road, that the force jolted his neck and he felt a sharp pain. The worker said he sought medical attention after Christmas as the pain was getting worse, and was given exercises for his neck. After New Years, a couple of his fingers went numb and he went back to the doctor and was referred for physiotherapy.

On January 28, 2008, an x-ray of the cervical spine showed "straightening of the cervical spine. There is minimal disc narrowing and spurring at C6-C7. The neck is tilted to the right presumably due to muscle spasm."

On March 20, 2008, a WCB medical advisor reviewed the medical reports on file and said that the possible diagnosis was a cervical radiculopathy, based on the referral of pain with numbness and tingling down the arm. On April 7, 2008, the WCB advised the worker that his claim was accepted for cervical radiculopathy.

On April 7, 2008, the worker underwent an MRI that revealed multi-level degenerative disc disease with a small foraminal herniation on the right at C4-5. No other significant abnormalities were identified.

On April 21, 2008, the worker was assessed by a neurologist and nerve conduction studies were carried out. The neurologist assessed the worker with left ulnar focal neuropathy at the elbow.

On June 12, 2008, a WCB medical advisor reviewed the file and stated that the current diagnosis was a neck strain and the ulnar neuropathy had no relationship to the compensable injury as was noted by the treating neurologist. He said a person could strain their neck after hitting a bump in the road, particularly in the milieu of degenerative disease of the cervical spine, and that the etiology of the worker's ongoing pain was unclear.

The worker was seen by a physical medicine and rehabilitation specialist (physiatrist) on August 8, 2008, who stated: "His neck pain is fairly atypical. I do wonder about a focal dystonia as underlying much of this. I think that it would be quite in keeping with trialing a course of Botox. Post-traumatic dystonia is a feasible option, although uncommon." A follow-up report was received from the physiatrist dated September 15, 2008.

On October 20, 2008, a WCB medical advisor was asked to comment on whether there was a new diagnosis of dystonia and whether such a diagnosis was consistent with the mechanism of the December 21, 2007 injury. The medical advisor responded that the physiatrist raised the possibility of a focal dystonia although the pattern of neck movements was by his own admission atypical. The neurologist did not find evidence of a dystonia. There had been no improvement with Botox so far. The diagnosis at this time was nonspecific neck pain.

In February and April 2009, the worker was assessed by a second neurologist at a movement disorder clinic and was diagnosed with cervical dystonia based on clinical assessment.

On April 27, 2009, a WCB medical advisor responded to a request for an opinion as to whether cervical dystonia was consistent with the mechanism of injury or related to a pre-existing condition. The medical advisor stated that he spoke with the neurologist at the movement disorder clinic (the "treating neurologist") to clarify the diagnosis, and the treating neurologist

identified the worker's condition as post-traumatic cervical dystonia secondary to a neck injury occurring when his truck struck a bump in the road, and that no pre-existing condition had been identified.

On October 20, 2009, the treating neurologist advised the WCB that the worker's signs and symptoms were consistent with cervical dystonia and that according to the worker's history, these symptoms were not present prior to the December 21, 2007 accident when he felt pain in his neck. He said that peer-reviewed medical literature reported that cervical dystonia can arise following trauma to the neck. On December 10, 2012, the treating neurologist reported that the worker had been treated at the clinic on March 8, June 1 and September 5, 2012. He commented that the worker was totally disabled due to his neck symptoms. The medical findings were as follows:

• head held in a position of anteroflexion and left sided rotation
• hypertrophy of the right sternocleidomastoid muscle
• restricted range of neck motion in all directions; most prominent with right head rotation.

On January 22, 2013, a WCB physiatry consultant stated, in part:

…Some "jarring" to the neck is not unexpected, as per the usual forces experienced driving a truck on a bumpy road. However no significant traumatic injury would be expected to the neck secondary to driving on a bumpy road, and there is no file evidence of any physical or structural evidence of trauma received on any of the subsequent testing or investigations on the available file. Even a possible strain to the neck would be expected to not have any structural or physical component and to have easily resolved shortly after the exposure. It is important to note that there was no evidence of any cervical dystonia four months post claim initiation when he had a thorough screening neurological and electrophysiological examination performed by the neurologist… (April 21, 2008). The current scientific literature available on this topic would not support that the many months post claim initiation report of cervical dystonia has any relationship to the original exposure to jarring of the neck. Also cervical dystonia is a complex neuromuscular condition of unknown causation (most often idiopathic of spontaneous onset), with no evidence to support that there was any significant cerebral trauma exposure in order to implicate a post traumatic causation.

On June 25, 2013, the WCB physiatry consultant elaborated on his January 22, 2013 report, stating, in part:

In summary, the diagnosis of post-traumatic cervical dystonia is not medically accounted for in relation to the December 21, 2007 neck jolt/pain after hitting a bump in the road, in light of the combination of i) the recognition that most cases of cervical dystonia are idiopathic in nature, ii) the absence of evidence of an accident related brain injury and iii) the virtually non-existent evidence supporting a pathophysiologic basis for peripheral trauma, such as a neck strain provoking a cervical dystonia.

On October 6, 2014, the worker was advised of the WCB's position that he had recovered from his compensable neck injury and that his current condition was unrelated. Therefore, he was not entitled to further benefits beyond December 29, 2014.

On January 9, 2015, the worker's legal representative submitted additional information to support that the worker was entitled to wage loss benefits beyond December 29, 2014. In the alternative, the legal representative requested a Medical Review Panel ("MRP") pursuant to subsection 67(4) of The Workers Compensation Act (the "Act").

In a letter dated February 2, 2015, the WCB confirmed that the worker's current condition was unrelated to his compensable injury and that no change would be made to the October 6, 2014 decision. It was further determined, on February 25, 2015, that there was no basis to convene an MRP. On February 27, 2015, the worker's legal representative appealed both decisions to Review Office.

On April 21, 2015, Review Office denied the request to convene an MRP on the grounds that the test associated with subsection 67(1) of the Act had not been met by any of the worker's practitioners. Review Office noted that many of the practitioners had supplied the diagnosis of post traumatic dystonia secondary to a neck strain, but none had gone on to advise as to how, medically, this relationship was established. Therefore, an MRP under subsection 67(4) was not warranted.

Review Office also confirmed that there was no entitlement to benefits after December 29, 2014. Review Office was of the view that the manner of injury would not produce an injury more substantial than a strain injury, and there was no causal connection between the worker's cervical neck dystonia and the described mechanism of injury. Review Office placed weight on the WCB medical opinion outlined on January 22, 2013. On July 8, 2016, the Worker Advisor Office appealed Review Office's April 21, 2015 decisions to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation

The Appeal Commission and its panels are bound by the Act, regulations and policies of the WCB's 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 4(2) provides that a worker who is injured in an accident is entitled to wage loss benefits for the loss of earning capacity resulting from the accident, but no wage loss benefits are payable where the injury does not result in a loss of earning capacity during any period after the day on which the accident happens.

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

Worker's Position

The worker was assisted by a worker advisor, who made a presentation of his behalf. The worker responded to questions from the worker advisor and the panel relating to, among other things, the work he did, the December 21, 2007 incident and his initial symptoms, how his symptoms progressed and the treatments he received.

With respect to the first issue, being the request for the convening of a Medical Review Panel, the worker advisor acknowledged that the requirements for the convening of such a panel under subsections 67(1) and (4) of the Act were not met, and advised that they were not pursuing that issue at the hearing.

With respect to the second issue, being the worker's entitlement to further benefits, the worker's position was that his diagnosis of post traumatic cervical dystonia was causally related to the December 21, 2007 compensable injury. The worker advisor submitted that the most significant piece of evidence supporting that relationship was the close proximity of the onset of the worker's dystonia to the December 21, 2007 incident. It was submitted that the worker's family doctor, his treating physiatrist and his treating neurologist all supported that fact, as well as the mechanism of injury. They also took into consideration that the worker had no prior symptoms and had experienced a progression of the condition since the injury. The worker should therefore be entitled to benefits beyond December 29, 2014.

Employer's Position

The employer did not participate in the appeal.

Analysis

Issue 1: Whether or not a Medical Review Panel should be convened pursuant to subsection 67(4).

As indicated above, the worker did not pursue this issue at the hearing.

Issue 2: Whether or not the worker is entitled to benefits after December 29, 2014.

For the appeal on this issue to be successful, the panel must find that the worker sustained a loss of earning capacity and/or required medical aid after December 29, 2014 as a result of his December 21, 2007 workplace injury. The panel is unable to make that finding.

The worker's evidence at the hearing was that he still had a couple of hours of driving to do following the incident, and was able to complete his trip. After that, he was on holidays. He had already booked the time off over Christmas and New Years. He went back to work in January, as scheduled, driving his usual routes, and worked much the same hours as he normally would have done. The worker said he was sore, but was able to keep going. He could stop and take 15-20 minutes naps along the way, as long as he got his load to its destination on time. He confirmed that he was working about 12 hours a day, 60-70 hours a week, and that he stopped working on February 1, 2008.

The information on file includes a 1993 article on posttraumatic cervical dystonia from a Mayo Clinic website which was submitted by legal counsel for the worker in support of his appeal to Review Office and referred to by the treating neurologist in his October 20, 2009 report as supporting that cervical dystonia can arise following trauma to the neck. Having carefully reviewed that article, the panel is unable to find that it supports the worker's position on this issue.

The panel notes that the article states that "posttraumatic cervical dystonia has been described as a distinct syndrome with some similarities to idiopathic nontraumatic cervical dystonia (torticollis)", and describes a study of five patients in whom cervical dystonia "developed immediately after relatively mild trauma to the neck." (emphasis added) The article states that four of the five patients had "persistent contractions of all cervical muscles including the trapezius muscles, which almost completely prevented motion of the neck and resulted in muscle hypertrophy." (emphasis added) The article noted that "All patients described loss of motion of the neck within 24 hours after the trauma", indicating that four of the patients had no mobility and the other had "left rotation very limited." The article went on to state that:

Typically, adult-onset cervical dystonia is sporadic and unassociated with an obvious inciting factor…In a small percentage of patients, however, trauma to the head, neck, or shoulder precedes the development of torticollis by days to months…The role of trauma is unclear in those cases in which a lengthy period intervenes between the trauma and the onset of dystonia.

Reference was also made in the article to another study which

…described six cases of cervical dystonia that developed immediately (1 to 4 days) after relatively mild trauma to the neck. Their six patients were similar to four of the five patients in our series. Common features were the severely limited motion of the neck, absence of transient symptomatic relief after a night's sleep, and absence of sensory tricks…

The worker relied on reports from the treating neurologist and treating physiatrist in support of his position that there was a causal relationship between his cervical dystonia and his December 21, 2007 workplace accident. The panel is unable, however, to accord much weight to those reports.

In particular, the panel notes that the treating neurologist first saw the worker on February 13, 2009, more than 18 months after the incident. In his October 20, 2009 report, the treating neurologist stated that:

As [the worker's] symptoms of cervical dystonia are temporally related to the accident of December 21, 2007, I find that his condition is most consistent with the diagnosis of post-traumatic cervical dystonia.

While the treating neurologist refers to the Mayo Clinic article as support for this conclusion, the panel notes that the evidence with respect to the worker's situation differs significantly from what was referred to in that article, in that the worker did not immediately (or within 1-4 days of the incident) experience the type or degree of symptoms described in the article. Rather, the evidence indicates that he was functionally able to continue performing his work duties for at least one month after the incident.

With respect to the treating physiatrist, the panel similarly notes that he first saw the worker on August 8, 2009, more than seven months after the incident. The physiatrist "wondered" at that time about focal dystonia as underlying much of the worker's pain. While commenting that "post-traumatic dystonia is a feasible option", he went on to state that it was uncommon.

The panel places more weight on the early medical reports from the first few weeks following the workplace incident. While indicating that the worker had neck pain and stiffness at that time, the findings do not suggest that the worker suffered a significant traumatic injury on December 21, 2007.

The panel also places significant weight on the January 22 and June 25, 2013 opinions of the WCB physiatry consultant who reviewed the file and concluded that the diagnosis of post-traumatic cervical dystonia was not medically accounted for in relation to the December 21, 2007 neck jolt/pain after hitting a bump in the road. The panel accepts the consultant's findings as being consistent with our own review of the medical and other evidence on the file.

The panel recognizes that the worker has significant ongoing difficulties. However, in light of the foregoing, and based on the medical and other information before us, we are unable to find that the worker's difficulties are related to his December 21, 2007 workplace incident. The panel therefore finds, on a balance of probabilities, that the evidence establishes that the worker's ongoing difficulties and diagnosis of cervical dystonia are not causally related to his compensable injury, and he did not sustain a loss of earning capacity or require medical aid after December 29, 2014 as a result of that injury.

As a result, the panel finds that the worker is not entitled to benefits after December 29, 2014.

The worker's appeal on this issue is dismissed.

Panel Members

M. L. Harrison, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

M. L. Harrison - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 23rd day of December, 2016