The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

The worker is appealing the decision made by the Workers Compensation Board ("WCB") that he is not entitled to further medical aid benefits in relation to his neck and back injuries. A hearing was held on April 5, 2018 to consider the worker's appeal.

Issue

Whether or not the worker is entitled to further medical aid benefits in relation to his neck and back injuries.

Decision

That the worker is not entitled to further medical aid benefits in relation to his neck and back injuries.

Background

The worker filed a Worker Incident Report for multiple injuries that occurred in a motor vehicle accident on June 4, 2015. The worker reported that he was inside the cab of the machine he was operating when it was struck from behind by a vehicle. The worker stated that he did not see the other vehicle coming and was pushed off the road and into the ditch on impact. He reported that he hurt his "neck, ribs, mostly upper part of the body, and…left leg" and had "pain all over."

The worker was taken by ambulance to hospital where various tests were conducted and he was diagnosed with "…posterior fractures of the right 9th to 12th ribs, and a small hemothorax, for which no interventions were necessary."

The worker's claim was accepted by the WCB, and wage loss and other medical benefits commenced. Chiropractic treatment was authorized until October 6, 2015 and subsequently continued to October 27, 2015.

On September 15, 2015, the worker attended a call-in examination with a WCB medical advisor. The medical advisor opined that the current diagnosis was healed right-sided lower rib fractures, a resolved hemothorax, and non-specific neck and mid back pain. His recommendation for treatment was for the worker to normalize activity. Based on the WCB medical advisor's assessment of the worker, it was determined that there was no impairment of function that would preclude the worker returning to work.

On November 17, 2015, the worker began a graduated return-to-work program, working three days a week for four hours per shift in the first week, and five days a week for four hours per shift the second week. The worker returned to his full regular hours on November 30, 2015.

In a discussion with the WCB on February 17, 2016, the worker advised that since returning to work, symptoms in his mid back and upper neck were getting worse again. He advised the WCB that he had not missed any time from work since his return, and his employer was accommodating his ongoing difficulties. The worker provided a copy of a January 26, 2016 report from a physician with an interest in occupational health medicine who had examined the worker and recommended treatment by an athletic therapist or physiotherapist.

On February 23, 2016, the worker's file was reviewed by the WCB medical advisor, who opined, in part, as follows:

1. The current diagnoses are healed right sided lower rib fractures, a resolved hemothorax, and non specific neck and mid back pain. [The worker] did not have radicular findings after the collision. In the WCB call in examination, he did not have evidence of radiculopathy.

The cervical spine CT findings would all be considered degenerative. Relating these findings to the June 4/15 motor vehicle collision is speculative rather than probable. 

…

2. Medical information on the file does not establish a probable relationship between the June 4/15 motor vehicle collision and any or all of:

i. Cervical radiculopathy 

ii. The degenerative findings noted on the CT of the cervical spine 

iii. The hypertonus as described by the occupational medicine physician.

On March 1, 2016, Compensation Services advised the worker that they could not accept responsibility for his current difficulties in relation to his June 4, 2015 workplace accident. The worker submitted further medical information to the WCB, including a report from a physical medicine and rehabilitation physician (physiatrist) dated June 30, 2016, together with EMG and Nerve Conduction Study results, and a report from a rheumatologist, with lab results, dated December 8, 2016.

The further medical information was reviewed by the WCB medical advisor on February 15, 2017, who opined that there were no reported findings consistent with a nerve injury or radiculopathy reported by the worker's family physician or noted during the worker's call-in examination with the WCB medical advisor. The WCB medical advisor noted that the left C6 radiculopathy results were likely related to the degenerative changes that had been noted in the worker's cervical spine.

The medical advisor also noted that the rheumatologist did not diagnose an inflammatory condition. The rheumatologist did comment on multiple widespread areas of pain and tenderness and findings consistent with osteoarthritis, kyphoscoliosis and possible obstructive sleep apnea, but the WCB medical advisor could not find "…a demonstrated probable relationship between the June 4/15 workplace injury and any of these conditions." On February 17, 2017, Compensation Services advised the worker that there was no change to their March 1, 2016 decision.

On May 23, 2017, the worker's union representative submitted additional medical evidence by way of a further report from the worker's chiropractor dated May 17, 2017, and requested that the WCB reconsider their March 1, 2016 and May 17, 2017 decisions. On May 26, 2017, Compensation Services advised the worker that there was no change to their earlier decisions.

On June 5, 2017, the worker's union representative requested reconsideration of Compensation Services' decisions by Review Office. The worker's representative submitted that the evidence supported that the worker's ongoing neck and back difficulties continued to be a direct result of his June 4, 2015 workplace accident and the worker was therefore entitled to further benefits, specifically medical aid.

On September 7, 2017, Review Office determined that there was no entitlement to further medical aid benefits in relation to the worker's neck and back injuries. Review Office noted that no acute findings were shown on the imaging studies conducted after the workplace accident in relation to the worker's neck. Review Office also noted that there were no soft tissue complaints due to muscle hypertonis noted at the WCB call-in examination on September 15, 2015, and as such, this could not be accounted for at a later date in relation to the workplace accident.

With respect to the worker's back symptoms, Review Office noted that following the September 15, 2015 call-in examination, the WCB medical advisor opined that the worker had non-specific mid back pain and recommended a return to usual activities. Review Office was unable to establish a relationship between the worker's current reported back issues and his compensable back strain/sprain from the workplace accident on June 4, 2015.

On September 21, 2017, the worker's union representative appealed the Review Office decision to the Appeal Commission and an oral hearing was arranged.

Reasons

Applicable Legislation and Policy

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.

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.

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."

WCB Policy 44.10.20.10, Pre-existing Conditions (the "Pre-existing Conditions Policy") addresses the issue of pre-existing conditions when administering benefits. The Pre-existing Conditions Policy states that:

When a worker's loss of earning capacity is caused in part by a compensable injury and in part by a non compensable pre-existing condition or the relationship between them, the Workers Compensation Board will accept responsibility for the full injurious result of the compensable injury.

The following definitions are set out in the Pre-existing Conditions Policy:

Pre-existing condition: 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.

WCB Policy 44.120.10, Medical Aid (the "Medical Aid Policy") sets out a comprehensive and coordinated approach to delivery of medical-aid services to injured workers. The provision of medical aid attempts to minimize the impact of the worker's injury and to enhance an injured worker's recovery to the greatest extent possible.

Worker's Position

The worker was represented by a union representative, who provided a written submission in advance of the hearing and made an oral presentation to the panel. The worker responded to questions from his union representative and the panel.

The worker's position was that the evidence supports that he has continued to suffer ongoing neck, and to some extent back difficulties, which are causally related to his June 4, 2015 work accident, and is therefore entitled to further medical aid benefits. The worker's representative clarified that while the issue addressed both the worker's neck and back, the worker was no longer experiencing low back issues, and the focus was on the worker's neck in particular.

The worker's representative noted that the evidence confirmed that the worker sustained multiple injuries due to his significant motor vehicle accident in 2015. He and his treatment providers understandably focused on the numerous rib fractures he sustained, but as the associated pain improved, the other injuries to his neck, mid and low back became more of a concern.

It was submitted that the worker improved with regular chiropractic treatment and began a gradual return to work, but was still experiencing ongoing neck and back symptoms, the effects of which were confirmed by his employer. His ongoing symptoms progressed following his return to work, where the constant jarring from riding in heavy equipment on rough roads exacerbated his already sensitive neck and back. The performance of his work duties caused an exacerbation of an ongoing compensable injury which required ongoing and further conservative treatment.

The worker saw an occupational medicine physician after his benefits were terminated, who opined that his persistent neck and back symptoms were still attributable to the workplace accident and warranted further conservative treatment. Specifically, the physician felt that the pre-existing osteophyte complex at C5/6 was enhanced as a result of the workplace accident.

The worker's treating chiropractor similarly felt that the accident had resulted in persistent issues in the worker's neck and back that required further treatment. The chiropractor, who had successfully treated the worker for injuries sustained in a previous motor vehicle accident, noted that the worker was symptom-free before his June 4, 2015 accident, despite degenerative changes seen on the subsequent imaging studies.

It was submitted that a lack of detail in the medical reports provided by the worker's treatment providers should not be used against the worker and his own reports of ongoing and persistent neck difficulties. It was further submitted that the lack of acute changes and the degenerative changes seen on the MRI and CT scans also did not mean that there was no effect on his spine as a result of his accident.

In the worker's view, the accident was responsible for the physical symptoms that persisted prior to and/or were exacerbated by his return to work. The evidence supports that his ongoing neck and back symptoms were still a result of his 2015 motor vehicle accident, and as such further responsibility should be accepted for ongoing medical investigation and treatment.

Employer's Position

The employer was represented by its Workers Compensation Specialist. The employer's position was that they were in agreement with the decision that there was no further entitlement to medical aid benefits in relation to the worker's compensable injury.

The employer's representative referred to several pieces of medical information on file which, in their submission, support that the worker's ongoing problems are more likely related to a pre-existing condition than to the compensable injury going forward.

It was submitted that the worker may well have ongoing complaints of neck and back pain, but in the employer's view, the objective evidence on file clearly supports that this would be directly related to the worker's pre-existing degenerative problems in his cervical spine area and the polyarthralgia which was documented by the rheumatologist.

In the employer's view, there is no medical evidence that a compensable injury produced an enhancement of the worker's pre-existing conditions. Diagnostic testing did not show that there was any acute injury to the worker in terms of his neck at the time of the accident which would substantiate any type of an anatomic alteration of the worker's neck having occurred in relation to the compensable injury.

It was submitted that any medical aid treatment that was being suggested or recommended in relation to the worker's ongoing complaints would be related to the worker's pre-existing issues and not his compensable injury, and the worker was therefore not entitled to further or ongoing medical treatment or benefits.

Analysis

The issue before the panel is whether or not the worker is entitled to further medical aid benefits in relation to his neck and back injuries. For the worker's appeal to be successful, the panel must find, on a balance of probabilities, that the worker's ongoing difficulties with his neck and/or back are causally related to his June 4, 2015 workplace accident. The panel is unable to make that finding.

At the outset, the panel notes that as previously stated, the worker's representative advised at the hearing that the worker was no longer experiencing low back issues, and the focus on this appeal was on the worker’s neck difficulties in particular. In response to a question from his representative, the worker further confirmed during the hearing that he was not after anything in respect of his back; that his concern was the constant pain in his neck and basically getting rid of that pain.

Given the very serious nature of the worker's accident and the extreme trauma involved, the panel attaches little weight to any delay in the reporting of symptomatology or lack of specificity with respect to complaints of neck and back injuries in the first four or five months following the worker's accident.

The panel is also unable to attach much weight to the medical evidence during that period of time with respect to the worker's neck and back symptoms, given the conflicting findings and diagnoses in the medical reports and whether there was evidence of radiculopathy.

The panel is further unable to attach much weight to the January 26, 2016 report of the occupational medicine physician, who concluded that the worker's

…left, upper arm pains and associated upper extremity paresthesias are likely radicular in nature and correspond to the C5-C6 osteophyte complex demonstrated in the images at the time of his MVA. He had no such symptomatology prior to the accident. The C5-C6 osteophyte complex is a pre-existing condition on which the whiplash accident has compounded, i.e., enhanced. His neck is certainly stiff and restricted with significant muscle hypertonis and tenderness.

The panel notes that the contents of the occupational medicine physician's report indicate that he was basing his conclusion on his examination of the worker's shoulder in particular. Further the panel finds there is a lack of medical evidence to support his assessment that the worker's pre-existing condition had been enhanced as a result of the injury.

The panel relies on the more recent medical evidence, including in particular the June 30, 2016 report from the physiatrist and the December 8, 2016 report from the rheumatologist, which in our view provide insight into the worker's ongoing difficulties and a clearer diagnosis of his ongoing or current symptoms and difficulties.

The panel places significant weight on the June 30, 2016 report of the physiatrist, who arrived at a number of neurological findings based on his examination and assessment of the worker and EMG/nerve conduction studies performed. The report indicates that the physiatrist's examination covered further areas of the body than those which were addressed by the worker's healthcare providers and the occupational medicine physician. The physiatrist's conclusions were described, in part, as follows:

[The worker] describes some neck pain around the time of the accident and by his report worsening arm pain. The osteophyte formation on the CT and MRI suggest a more chronic process however it is difficult to determine any change in disc protrusion as a result of the accident. I am reassured that despite having these symptoms his EMG does not demonstrate any ongoing denervation at this time…

He does have evidence for an ulnar neuropathy at the left elbow. This best explains his left digit 4 and 5 finger paresthesias. He reports sleeping with his arm in a bent position and I advised him to endeavor to keep the arm straight when sleeping…He appears to have an incidental median neuropathy at the left wrist. This does not appear overly symptomatic…

The panel notes that the physiatrist's findings were of conditions which were basically local, as opposed to radicular, in nature. The panel finds that the worker's evidence at the hearing also confirmed that his major ongoing complaints or symptoms are local in nature, and not radicular in presentation. The panel is unable to relate any of these ongoing symptoms or difficulties to the workplace accident.

The panel also places significant weight on the December 8, 2016 report from the rheumatologist who identified problems in the worker's arm but not from his neck. The rheumatologist diagnosed the worker with polyarthralgia, and noted that "The symptoms and signs are most consistent with a biomechanical and not inflammatory etiology of his current complaints." The rheumatologist also noted findings of kyphoscoliosis, osteoarthritis and possible sleep apnea. The panel is again unable to relate these diagnoses to the workplace accident.

In summary, the panel accepts that the worker experienced a sprain/strain injury in the environment of pre-existing degenerative conditions. The panel is unable to find, however, based on the evidence which is before us, that the worker experienced an enhancement of his pre-existing degenerative conditions. Rather, the panel is satisfied that the worker's neck and back injuries had resolved by the time the worker returned to work in November 2015.

Based on the foregoing, the panel finds, on a balance of probabilities, that the worker's ongoing difficulties with his neck and/or back are not causally related to his June 4, 2015 workplace accident. The panel therefore finds that the worker is not entitled to further medical aid benefits in relation to his neck and/or back injuries.

The worker’s appeal is dismissed.

Panel Members

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

Recording Secretary, J. Lee

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

Signed at Winnipeg this 4th day of June, 2018