The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he was not entitled to benefits after December 23, 2014. A hearing was held on May 3, 2017 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to benefits after December 23, 2014.

Decision

That the worker is not entitled to benefits after December 23, 2014.

Background

The worker filed a claim with the WCB on June 17, 2011 for a left-sided neck injury that occurred on June 7, 2011. The worker reported that he was helping co-workers carry an object that weighed approximately 300 pounds up two flights of stairs using a trolley. After the first flight of stairs, he felt a tremendous amount of strain on his shoulders and low back. He was able to finish work that day but a few days later he started to feel symptoms in his neck.

The worker's claim for compensation was accepted and benefits and services were paid. The compensable diagnosis based on initial medical reports was "chronic and ongoing left C6 and C7 radiculopathy and left C6-7 lateral disc herniation" as noted by a WCB medical advisor on November 14, 2011.

On February 10, 2012, the worker advised his case manager that he was working on a full-time basis and was performing as much of his regular duties as he could. The worker advised that he still had pain and headaches (migraines) related to his injury as well as tightness in his neck, shoulders and back.

In 2013, the worker advised the WCB that he continued to suffer symptoms which included migraines, muscle tension, muscle pain in his left arm, shoulder (triceps area) and between the shoulder blade and spine.

On August 7, 2013, a WCB physical medicine and rehabilitation consultant ("physiatrist") noted to the claim file that the current diagnosis was chronic C6-C7 radiculopathy and that the available information does not suggest a probable relationship between the claim incident and the current diagnosis.

On November 19, 2013, a different WCB medical advisor stated that the mechanism of injury clearly indicated that the worker sustained a left cervical neck injury at the time of the compensable injury.

On April 10, 2014, a WCB senior medical consultant stated:

Further consideration regarding causation of [worker's] left sided lower cervical radiculopathy in mid June, 2011 needs to take into account the following factors:

• The recognition that cervical radiculopathies often occur spontaneously, without frank antecedent trauma.

• The worker, in his June 17, 2011 Worker Incident Report stated that he did not feel symptoms until two or three days after June 7, 2011. The worker also stated that he was seeing a physiotherapist for a different treatment prior to June 7, 2011.

• The July 25, 2011, EMG finding of polyphasia (in addition to fibrillations) in the left triceps and left flexor carpi radialis muscles, with polyphasia were representative of chronic (longer standing) reinnervation.

• The July 25, 2011 physiatrist's diagnosis of mild to moderate chronic (rather than acute) ongoing left C6 radiculopathy and findings of mild atrophy of the left trapezius muscle (suggesting a longer standing process affecting that muscle).

The WCB then requested and obtained pre-accident medical information which was reviewed by the WCB physiatrist on November 14, 2014 who stated:

"…what is the current diagnosis? Chronic left C6/C7 radiculopathy was suggested, this based on the documented medical findings and the results of the electromyography performed following claim initiation. The documented electrophysiological changes post incident however did not identify any acute nerve injury findings (positive sharp waves, etc), as per an acute radiculopathy, but only those of a chronic one, that is with findings as those observed beyond 4-6 months after nerve injury (a reinnervation pattern).

Yes the documentation suggests a relevant preexisting history. The documentation suggests a significant neck injury occurring in 1998/1999 related to a demolition derby, with interval symptoms in the neck and headaches. There was also documentation of immediately prior (that is in the days prior) to claim initiation of the receipt of physiotherapy treatment for the neck and shoulder and pectoralis muscle. Also there were no cervical radiculopathic symptoms reported, until acute onset of these (increased of neck pain, new pain radiating down the left arm and left elbow burning) which were noted 3 days later on June 14th, 2011, while a passenger in car and doing some neck stretches.

On November 20, 2014, the worker met with his WCB case manager to discuss his prior medical/health issues and his symptoms subsequent to his compensable injury.

In a decision dated November 20, 2014, the worker was advised that based on medical information before and after the injury date of June 7, 2011, it was determined that his condition had returned to a pre-accident/pre-existing condition requiring no further compensable restrictions. In the case manager's opinion, the worker's ongoing migraine/headaches and neck symptoms were directly related to the demolition derby injury in 1998/1999. The worker was advised that wage loss benefits, treatments and/or medical aid benefits would end effective December 23, 2014.

In a December 16, 2014 claim memo, the WCB physiatry consultant stated:

There are historical detail discrepancies between what is on the file and what was reported in that interview. The scientific literature notes that the most accurate documentation would be that closest to the incident. Specifically the provided pre-claim physiotherapy reports, including of the day before the reported claim incident document receipt of physiotherapy for the neck, right shoulder, arm and chest area, in addition to the low back. I would note that physiotherapists have a college and standards of practice and that physiotherapists would not provide treatment to areas of the body that do not require treatment. Also the initial radiculopathic symptoms were recorded for the first time on the file in the physiotherapist notes several days after the incident and documented acute onset of burning radiculopathic pain down the arm following doing a stretch exercise for the neck while in a car. This history was as relayed to the physiotherapist by the claimant. An acute cervical disc herniation causing nerve compression having onset at this point (while doing a stretch in the car) is of high statistical probability. Also the pre incident medical file as far back as 2009 documents frequent migraine headaches (therefore a preexisting problem) in contradistinction to the lack of preexisting headaches reported by the claimant in the recent interview.

In a further decision dated December 17, 2014, it was confirmed to the worker that, in the opinion of the WCB, his ongoing symptoms and disability were related to a pre-accident, pre-existing condition and were not related to his compensable injury.

On June 2, 2015, the WCB physiatry consultant stated:

I would note on the MRI scan dated May 06th, 2015, as previously noted, there were multilevel degenerative changes and disc osteophyte combinations at several levels present and contributing to multiple level foraminal encroachments. These changes would be considered to be preexisting and likely longstanding structural changes. At the C6/C7 level there was note of a small herniation contributing to the adjacent foraminal narrowing, however the radiologist noted that this now appeared to have lessened (improved).

The orthopedic surgeon on his follow-up review, stated that the claimant had "very good power" in both hands (grip testing of 74 Kg force), and "no weakness of the triceps muscle at this point" (prior suggested weakness of C7, as a radiculopathy), "no indication for surgery at this point, patient needs medication from time to time, few days sick leave from time to time". The surgeon in essence advised the claimant to maintain his current activities, including his usual employment activity.

Therefore based on the further review of the available Emerge medical file and also review of the more recent medical file information, as listed, there is no medical rationale for altering my prior placed opinions.

No, and there is no old nor new medical information to support a claim incident related physical or patho-anatomic diagnosis for the reported neck (H/As, etc.). I would also note that it is now at the point 4 years remote from the reported claim incident. I would also note that all of the more recent examining practitioners' assessments have not identified any claim incident related functional impairment and that the claimant was essentially advised by these practitioners to continue at his current activities of daily living and usual employment activities. No specific further management changes were advised either.

In a further decision dated June 5, 2015, the case manager referred to the WCB medical opinion of June 2, 2015. The case manager outlined his opinion that there was no old or new medical information to support a claim incident related physical or patho-anatomical diagnosis for the worker's reported neck (headaches).

On July 17, 2015, the Worker Advisor Office appealed the November 20, 2014 decision to Review Office. The worker advisor submitted that the worker had not recovered from his compensable injury based on MRI findings and reports on file from the worker's treating surgeon, neuromuscular specialist and general practitioner.

In a September 17, 2015 decision, Review Office determined that there was no entitlement to benefits beyond December 23, 2014. Review Office referred to specific evidence on file to support that the worker likely sustained soft tissue injuries (strains/sprains) involving his neck, shoulders and low back and it did not find that a more sinister injury occurred on June 7, 2011.

Review Office did not accept the diagnoses provided by the worker's doctor dated June 15, 2011 ("acute injury cervical spine with left sided radiculopathy"), the physiotherapy diagnosis ("cervical strain with nerve root compression"), the July 25, 2011 nerve conduction study (Mild to moderate chronic and ongoing C6 (less likely C7) radiculopathy on the left…") and the September 8, 2011 cervical spine MRI ("Multiple disc herniations are present, the largest of which is seen left posterolateral and foraminal at C6-0C7") as being compensable conditions given that the worker had no symptoms which affected his ability to continue working following the June 7, 2011 accident.

Review Office referred to the WCB medical opinions on file and found that the worker had a history of pre-existing conditions such as the neck, right shoulder, arm, chest area, low back and migraine headaches and it did not find the June 7, 2011 incident had enhanced these conditions.

Review Office concluded that the weight of evidence did not establish a relationship to account for the worker's current difficulties in relation to the compensable injuries. It concluded that the worker had recovered from the workplace accident of June 7, 2011 and was not entitled to benefits beyond December 23, 2014.

On December 22, 2016, the worker advisor appealed Review Office's decision to the Appeal Commission and a 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 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 2011 workplace accident. He is appealing the WCB decision that he is not entitled to benefits after December 23, 2014.

Worker's Position

The worker was represented by a worker advisor. The worker answered questions from the panel.

The worker's representative submitted that the majority of evidence supports the worker has not recovered from the effects of his June 7, 2011 workplace accident and resulting cervical spine injury.

The worker's representative submitted that the worker remains symptomatic from a C6-7 disc herniation and associated radiculopathy after the benefit end date. He said that this is supported by the results of the worker's May 2015 cervical spine MRI, the physical examinations performed leading up to and beyond December 17, 2014, and the fact that no WCB medical consultant has said that the worker's presentation was inconsistent with the cervical radiculopathy as of December 2014.

The worker's representative said that the issue seems to be whether the workplace accident is responsible for the worker's injuries. He noted that an April 5, 2013 claim memo indicates that the worker's job required lifting, pushing and pulling items weighing upwards of 100 pounds, as well as having to work in awkward positions.

He said there is no information on file to indicate that the worker experienced difficulty performing his job prior to the workplace accident and said that the pre-accident medical information did not show the diagnosis of a left-sided C6-7 disc herniation and/or cervical radiculopathy, nor clear clinical findings or subjective complaints consistent with either condition.

The worker's representative disagreed with an October 2014 WCB medical consultant note, which indicated that the same pre-accident documentation suggested the worker had sustained a significant neck injury resulting from a late 1990's incident, which was in his view followed by interval neck symptoms and headaches.

The worker's representative noted that besides a general soreness that the worker related to the physical nature of his work, he reported having no pre-accident neck or left arm difficulty, such as what he experienced following his workplace accident.

Regarding the worker's vision, the worker's representative noted that the worker saw a neurologist in January of 2012 with respect to his headaches. He noted that a report states that the worker had reported headache problems for many years prior. The worker believed the headaches were secondary to eye strain, for which he had obtained new eyeglasses before his workplace accident that led to a significant reduction of headaches. The worker's representative also noted that the neurologist concluded that the worker's headaches were migranous in origin, susceptible to being triggered by odors, but also could not refute that the re-emergence of his headaches were causally connected to a cervical disc injury and radiculopathy.

The worker's representative submitted that the subjective report of pre-accident headaches does not establish the existence of a long-standing cervical radiculopathy or a C6-7 disc herniation.

The worker's representative noted that the worker's own healthcare providers agreed with the diagnosis, and that three WCB medical advisors have also concurred that the diagnosis was related to the accident. He referred to the reports of an occupational health clinic physician who opined that the worker's symptoms are consistent with a continuing cervical disc herniation and radiculopathy. As well, the physician provided copies of studies that suggest electromyographers may confuse acute with chronic root compression.

Regarding the WCB medical consultant's comment that there was no report of symptoms or findings consistent with the cervical radiculopathy occurring from the claim incident, the representative noted that a left-sided cervical radiculopathy was identified by the first doctor who assessed the worker roughly one week following the accident, and was diagnostically confirmed later by way of MRI on September 8, 2011.

The worker's representative noted that every MRI report on file makes mention of a disc herniation at D6-7. He said that there is no sign of chronic injury following the claim problems from the late 90s.

He submitted that:

• with or without a radiculopathy, the disc herniation is also a compensable injury that appears to have continued to affect the worker beyond the date that the benefits ended.

• if the panel finds that the worker had a pre-existing cervical radiculopathy, then it follows the workplace accident aggravated or enhanced the condition, and that it had not returned to its pre-accident status by the benefit end date.

• should the panel decide that the worker's cervical radiculopathy is an acute post-accident condition that developed several days after the accident from the worker having stretched his neck while a passenger in a vehicle, responsibility for the injury lies with the WCB on the basis of it being a further injury subsequent to a compensable injury.

The worker answered questions from the panel.

Employer's Position

The employer did not participate in the hearing.

Analysis

The issue before the panel is whether the worker is entitled to benefits after December 23, 2014. For the worker's appeal to be approved the panel must find, on a balance of probabilities, that the worker continued to sustain a loss of earning capacity and require medical treatment for his work related accident after December 23, 2014.

Upon considering all the evidence and arguments, including the worker's testimony and presentation at the hearing, the panel finds, on a balance of probabilities, that the worker had recovered from the compensable injury by December 23, 2014 and accordingly, any loss of earning capacity or medical treatment after this date are not related to the workplace injury.

The panel finds that the worker sustained an aggravation of a pre-existing injury when he was injured on June 7, 2011 and that the worker had recovered from the aggravation and is not entitled to benefits after December 23, 2014.

In support of the panel's determination that the worker had a pre-existing condition, the panel relies upon the following:

• the worker's evidence that he had periodic neck, leg and arm pain before the workplace injury.

• the worker's evidence that he suffered headaches before the workplace injury.

• the evidence that the day prior to the compensable injury, the worker was treated by a physiotherapist for complaints respecting the same area that was injured in the June 7, 2011 accident and underwent treatments prior to this.

• the worker's evidence that he did not feel symptoms until 2 to 3 days after the incident.

• the chart entry dated November 14 or 19, 2010 that contains the statement, "neck injury in '98 or '99, now bad headaches at left side."

• the May 2016 MRI which noted degenerative changes throughout the worker's cervical spine.

With respect to recovery from the aggravation of his pre-existing condition by December 23, 2014, the panel notes these early reports of improvement in the worker's condition:

• the December 13, 2011 opinion of the orthopedic surgeon who examined the worker and reported:

In the meantime the patient has recovered much of his symptoms. He still has some pain and discomfort in his left forearm as well as subjective weakness of the his left arm. He denies any headaches…Clinical evaluation shows a patient who is 6'1" and weighs 225 pounds. Examination of his back confirms no localized tenderness nor muscle spasm…[worker] has certainly improved many of his complaints and symptoms. However, the objective weakness of his triceps muscle with atrophy noted is certainly disconcerting.

• the January 30, 2012 opinion of the physical and rehabilitation medicine specialist which states:

  I had the opportunity to evaluate [worker] again in follow-up for his left arm pain and C6-7 radiculopathy on the left…Overall I am happy with his improvement. He has recovered well. He still has some mild weakness of the triceps with some mild residual atrophy. I am optimistic that his strength will improve. The atrophy represents axonal injury to the C7 myotome and may take a much longer time to improve.

• the October 27, 2012 MRI of the cervical spine which notes, with respect to the C6-7, that when compared to the prior examination, the size of the herniated disc is diminished.

In making this decision, the panel is attaching significant weight to the opinions of the WCB physiatry consultant as noted in the background portion of this decision.

For the reasons noted above, the panel finds that the worker is not entitled to further benefits beyond December 23, 2014.

The worker's appeal is dismissed.

Panel Members

A. Scramstad, Presiding Officer
A. Finkel, Commissioner
M. Kernaghan, Commissioner

Recording Secretary, B. Kosc

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

Signed at Winnipeg this 14th day of June, 2017